author: SABERS, Justice.

text:
    2002 SD 45
    Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants, v. BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees.
    No. 22124.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided April 24, 2002.

      James G. Abourezk, Abourezk Law Offices, P.C., Sioux Falls, South Dakota, Attorney for petitioners and appellants.
    Lisa Z. Rothschadl, Bon Homme County State’s Attorney, Tyndall, South Dakota, Attorneys for respondents and appellees.
   SABERS, Justice.

[¶ 1.] Duane Vitek, Michael Neth, Sandy Neth, Steven Neth and Sharon Neth (Vitek) applied for a writ of mandamus to compel the Bon Homme County Board of Commissioners (County) to submit to a vote of the qualified electors of the county a referendum regarding a variance granted by County for the construction and operation of a hog confinement facility. The First Circuit Court denied a writ of mandamus and we reverse and remand.

FACTS

[¶ 2.] On April 26, 2001, the Bon Hom-me County Board of Adjustment (Board) granted a variance to Leo and Linda Ped-erson (Pederson), allowing them to construct a hog confinement facility in Bon Homme County. The state’s attorney for Bon Homme County prepared findings of fact and conclusions of law which Board adopted on May 25. On June 28, County held a hearing regarding Board’s decision to grant the variance. County affirmed the decision and adopted Board’s findings of fact and conclusions of law, which were later published on July 25. On July 27, Vitek filed a direct appeal to the First Judicial Circuit.

[¶ 3.] On August 13, 723 citizens of Bon Homme County signed petitions with the county auditor seeking a referendum vote. On August 21, County voted unanimously to reject the petitions. County stated its action of granting the variance was a quasi-judicial administrative decision and thereby not subject to the referendum process set forth in SDCL 7-18A-15.1.

[¶ 4.] On August 29, Vitek filed an application for writ of mandamus with the First Judicial Circuit. Vitek sought to compel County to submit its decision regarding the variance to a vote. The circuit court denied the writ on September 7, because Vitek had an adequate remedy at law in the form of a direct appeal to a circuit court under SDCL 7-8-27. The circuit court further stated that the appeal constituted Vitek’s exclusive remedy under SDCL 7-8-32.

STANDARD OF REVIEW

[¶ 5.] The grant or denial of a writ of mandamus is discretionary. Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 269-70; Willoughby v. Grim, 1998 SD 68, ¶ 6, 581 N.W.2d 165, 167 (citations omitted). Therefore, a denial of a writ of mandamus is reviewed under an abuse of discretion standard. Id. “[A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citations omitted). “We do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could

have reached a similar decision.” Id. (citations omitted).

[¶ 6.] WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT THE EXCLUSIVE REMEDIES PROVIDED FOR IN SDCL 7-8-27 AND 7-8-32 PRECLUDE THE ISSUANCE OF A WRIT OF MANDAMUS TO REQUIRE A REFERENDUM.

[¶ 7.] County granted a zoning variance to Pederson for the construction and operation of a 3,300-head hog confinement facility. Neither the zoning ordinance under which this variance was granted nor the variance provision itself were included in either the record or Vi-tek’s brief. Whether County’s act of granting the variance is legislative or administrative in character presents a close question. SDCL 7-18A-15.1 provides that “lalny legislative decision of a board of county commissioners is subject to the referendum process.” (emphasis added). In addition, “[i]n applying the ‘legislative’ versus ‘administrative’ distinction!,] this Court will apply a liberal rule of construction permitting rather than preventing, citizens from exercising their powers of referendum.” Wang v. Patterson, 469 N.W.2d 577, 580 (S.D.1991). It would appear that a variance of this nature is substantial and would be legislative and therefore subject to referendum, but we are unable to discern whether this is true because of an incomplete record.

[¶ 8.] Vitek seeks issuance of a writ of mandamus to compel County to submit its zoning decision to the referendum process. “To prevail in seeking a writ of mandamus, [a] petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Willoughby, 1998 SD 68 at ¶ 7, 581 N.W.2d at 168 (citing SD Trucking Ass’n, Inc. v. SD Dep’t of.Transp., 305 N.W.2d 682, 684 (SD 1981)). Mandamus is a remedy granted under exceptional circumstances:

[T]o compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.

SDCL 21-29-1. See also Baker, 2001 SD 49 at ¶ 16, 625 N.W.2d at 271 (stating mandamus is “an extraordinary remedy that will issue only when the duty to act is clear”). A court may issue a writ of mandamus only “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” SDCL 21-29-2.

[¶ 9.] To prevail, Vitek must show he has a clear legal right to submit County’s decision to the referendum process, and that County must have a definite legal obligation to submit its decision to the referendum process. County asserts and the circuit court agreed, however, that the exclusive remedy provision of SDCL 7-8-32 precludes issuance of a writ of mandamus. While the direct appeal provided for in this statute represents the exclusive statutory remedy, it trumps neither the South Dakota Constitution nor the statutes that implement it.

[¶ 10.] South Dakota, through its Constitution, “has reserved the referendum power to the people.” Taylor Properties, Inc., 1998 SD 90 at ¶ 24, 583 N.W.2d at 643 (citing S.D. Const. Art. Ill § 1). Article III § 1 provides, in pertinent part, that:

[T]he people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effectf.]

This Court has noted that “[t]his sacred right is also specifically extended to the issue of county comprehensive plans and adjuncts thereto by SDCL 11-2-22.” Taylor Properties, Inc., 1998 SD 90 at ¶ 24, 583 N.W.2d at 643. This Court has further noted that:

A referendum ... is far more than an expression of ambiguously founded neighborhood preference. It is the city itself legislating through its voters — an exercise by the voters of their traditional right through direct legislation to override the view of their elected representatives as to what serves the public interest.

Id. (quoting Spaulding v. Blair, 403 F.2d 862 (4th Cir.1968)).

[¶ 11.] Furthermore, SDCL 9-20-18 provides in part:

The Legislature finds that in making past grants of decision-making authority to municipal governing authorities, its intent was to grant that authority to the governing bodies of municipalities and that such actions, unless otherwise excluded from the referendum and initiative process by other state law, are subject to the initiative and referendum process.

See also Wang, 469 N.W.2d at 578. SDCL 7-18A-16 provides that the filing of a petition to refer an ordinance to referendum requires a county to submit its decision to a vote of the county.

[¶ 12.] The South Dakota Constitution and statutes that implement it may provide Vitek with a clear legal right to have County submit its zoning decision to the referendum process. The first inquiry for the circuit court should have been whether Vitek established this clear legal right. However, the circuit court failed to give proper consideration to determining whether County’s zoning decision was subject to referendum. It instead undertook a discussion of whether the exclusive remedy provision of SDCL 7-8-32 precluded issuance of a writ of mandamus. The circuit court’s decision on whether Vitek had a clear legal right to referendum should have been made without reference to the exclusive remedy provision.

[¶ 13.] From the state of this record, we cannot determine whether the circuit court was overly influenced by the exclusive remedy provision of SDCL 7-8-32 or if it failed to make a detailed ruling on the legislative versus administrative portion of the analysis. Therefore, we reverse and remand for redetermination.

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

[¶ 15.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

       SDCL 7-18A-15.1 provides that "[a]ny legislative decision of a board of county commissioners is subject to the referendum process.” The statute further provides "[n]o administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code.” Under SDCL 9-20-19 an administrative decision is defined as "one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature.” A legislative decision is defined as "one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.” See also Taylor Properties, Inc. v. Union County, 1998 SD 90, 583 N.W.2d 638 (distinguishing between administrative and legislative actions); Wang, 469 N.W.2d 577 (same).
      If, in fact, County granted a variance neither permitted nor contemplated under the county’s zoning law, the grant of the variance would be legislative and not administrative. The act of granting such a variance could constitute laying down a new rule of conduct or course of policy and would therefore be legislative, contrary to current law and subject to referendum.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    Benjamin E. SCHREIBER, Appellant, v. Norman G. BASTEMEYER, Administrator of Iowa Supreme Court Board of Professional Ethics & Conduct, Appellee.
    No. 00-0325.
    Supreme Court of Iowa.
    May 8, 2002.

      Benjamin E. Schrieber, pro se.
    David J. Grace, Des Moines, for appel-lee.
   TERNUS, Justice.

The appellant, Benjamin Schreiber, asks us to examine the district court’s dismissal of his petition for judicial review. Schreiber sought to have the district court review a decision by the Iowa Supreme Court Board of Professional Ethics and Conduct that dismissed a complaint filed by Schreiber against his former attorney. Schreiber also sought damages from the board’s administrator, Norman Bastemeyer. The district court’s decision to dismiss Schreiber’s action had two bases: the court lacked subject matter jurisdiction and the ethics administrator was immune from suit. We agree with the district court’s ruling and so affirm.

I. Background Facts and Proceedings.

Schreiber was formerly represented in a criminal matter by Iowa attorney Kirk Daily. (Daily has since been appointed a district associate judge.) After the criminal suit resulted in Schreiber’s incarceration, Schreiber filed a complaint with the Iowa Supreme Court Board of Professional Ethics and Conduct, alleging Daily had committed professional misconduct. More specifically, Schreiber asserted Daily had a conflict of interest that adversely affected his representation of Schreiber.

The board investigated Schreiber’s complaint and learned Schreiber had been informed on two occasions of the possible conflict and in both instances Schreiber had indicated he had no problem with the situation. The board concluded, therefore, that the allegations of misconduct by Daily were unsupported and dismissed the complaint. Bastemeyer, administrator for the ethics board, notified Schreiber of the board’s investigation and decision.

Subsequently, Schreiber filed a thirty-three-page petition for judicial review in the district court pursuant to Iowa Code section 17A.19 (1999). Rather than naming the board as the defendant, Schreiber sued the board’s administrator, Bas-temeyer. The petition, which included many documentary exhibits, contained an exhaustive recitation of the factual and procedural background of Daily’s representation of Schreiber, as well as of the proceedings before the ethics board. Schreiber sought a declaratory judgment that Bastemeyer had violated his rights and that Daily had a conflict of interest when he represented Schreiber. The appellant also sought compensatory and punitive damages, as well as sanctions against Bastemeyer.

Bastemeyer’s motion to dismiss was granted by the district court. For purposes of its ruling, the court assumed that the board had been named as a defendant. See Iowa Code § 17A.19(4) (1999) (stating the petition for judicial review must “name the agency as respondent” (emphasis added)). The court then concluded it had no subject matter jurisdiction because the board was not an “agency” whose actions were subject to judicial review under chapter 17A. It also ruled that Bastemeyer, as the administrator of the board, was immune from suit under Iowa Court Rule 35.22(2). Schreiber appealed.

II. Scope of Review.

We review the district court’s ruling for correction of errors at law. McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998) (stating review of ruling on motion to dismiss is for correction of legal error). Although motions to dismiss based on jurisdictional grounds may be supported by an evidentiary showing, Hayden v. Ameristar Casino Council Bluffs, Inc., 641 N.W.2d 723, 724 (Iowa 2002), no evidence was offered by either party in this case, other than that incorporated in the petition. Therefore, the district court’s decision must rest on legal grounds apparent from Schreiber’s petition for judicial review. See id.; Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994). “A motion to dismiss is sustainable only when it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claims asserted.” Haupt, 514 N.W.2d at 911 (citation omitted).

III. Jurisdiction.

“Subject matter jurisdiction is the authority of a court to hear and determine cases of the general class to which the proceedings belong, not merely the particular case then occupying the court’s attention.” Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). Schreiber claims this action falls within the general class of cases that are subject to the judicial review procedures of chapter 17A. We turn, then, to the provisions of that statute.

Section 17A.19(1) permits a petition for judicial review to be filed by a person “aggrieved or adversely affected by any final agency action.” Iowa Code § 17A.19(1) (emphasis added). An “agency” under chapter 17A includes “each board, commission, department, officer or other administrative office or unit of the state.” Iowa Code § 17A.2(1). Importantly, this term does not include “the judicial branch or any of its components.” Id.

Based on these statutory provisions, it appears that the determinative issue here is whether Bastemeyer is an officer of “the judicial branch or any of its components.” The answer to that question turns on whether the ethics board of which he is the administrator is a component of the judicial branch. We think it is.

It cannot be disputed that the Iowa Supreme Court is part of the judicial branch. See id. § 602.1102(1) (stating that the judicial branch consists of several parts, including the supreme court). One of the responsibilities of the court is to admit persons to the practice of law in the courts of this state. See id. § 602.10101. This power carries with it the obligation to “supervise the conduct of attorneys,” including the imposition of discipline when appropriate. See id. §§ 602.1206, .10121; accord Comm. on Prof l Ethics & Conduct v. Bromwell, 221 N.W.2d 777, 780 (Iowa 1974).

In fulfilling its supervisory duties, the supreme court has created the Iowa Supreme Court Board of Professional Ethics and Conduct to process complaints made against attorneys. See Iowa Ct. R. 35.2(1). Board members “are appointed commissioners of the supreme court.” Id. The board is required to investigate complaints filed with it and “either dismiss the complaint made, or admonish or reprimand the attorney, or file and prosecute the complaint before the grievance commission.” Id. Complaints prosecuted before the grievance commission are ultimately subjected to a hearing, and the commission may then dismiss the complaint, issue a private admonition, or recommend to the supreme court that the attorney be subjected to professional discipline, including suspension or revocation of the attorney’s license. Iowa Ct. Rs. 35.7, .9.

We think the ethics board clearly qualifies as a “component” of the judicial branch. Since the legislature did not define this term, we give this word its ordinary meaning. Miller v. Westfield Ins. Co., 606 N.W.2d 301, 305 (Iowa 2000). The dictionary defines the word “component” as “a constituent part.” Webster’s Third New International Dictionary 466 (unabr. ed.1993). Here, where the ethics administrator and the board he serves were established by the supreme court and assist the court in carrying out its mandate to supervise the practice of law in Iowa, there can be no doubt that both the administrator and the board are part of the judicial branch.

As noted above, components of the judicial branch are not agencies within chapter 17A and, therefore, are not subject to the judicial review provisions of that statute. Accordingly, because the named defendant in this action is a component of the judicial branch, this proceeding cannot be maintained based on the authority of chapter 17A. We turn, then, to a consideration of whether there is any viable claim against the ethics administrator apart from the procedures for judicial review.

IV. Immunity.

The district court, in ruling on Bastem-eyer’s motion to dismiss, concluded that suit could not be brought against the ethics administrator because he had immunity under Iowa Court Rule 35.22(2). That rule states:

Members of the grievance commission, members of the board of professional ethics and conduct, and their respective staffs shall be immune from suit for any conduct in the course of their official duties.

Iowa Ct. R. 35.22(2) (emphasis added).

Bastemeyer, as a member of the ethics board’s staff, is entitled to immunity from suit for his conduct in the course of his duties as administrator for the board. A review of Schreiber’s lengthy and detailed petition reveals that the only involvement of Bastemeyer in the matters giving rise to Schreiber’s claim for declaratory and compensatory relief is Bastemeyer’s role in the processing of Schreiber’s complaint with the ethics board. Because Bastemeyer is immune from suit for this conduct, the district court correctly dismissed this action.

AFFIRMED.

      . For purposes of our decision today we assume the ethics administrator is an “officer” within the meaning of the statutory definition of “agency.”


author: LARSON, Justice.

text:
    Rick C. KETTELLS and Stephanie Kettells, Appellants, v. ASSURANCE COMPANY OF AMERICA, Appellee.
    No. 99-1937.
    Supreme Court of Iowa.
    May 8, 2002.

      J. Russell Hixon, Clive, for appellants.
    Joseph A. Happe and Patrick D. Smith of Huber, Book, Córtese, Happe & Brown, P.L.C., Des Moines, for appellee.
   LARSON, Justice.

Rick and Stephanie Kettells sued their underinsured motorist insurance carrier and obtained a judgment against it. The plaintiffs collected on the judgment and then filed posttrial motions under Iowa Rules of Civil Procedure 244 (new trial) and 252 (vacation or modification of judgment). (These rules have recently been renumbered 1.1004 and 1.1012, respectively.) The district court denied the posttrial motions, and the plaintiffs appealed. We dismiss the appeal as waived.

I.Facts and Prior Proceedings.

Rick Kettells was injured in an automobile accident in 1996. He and his wife settled with the other driver. Then they sued their own carrier, Assurance Company of America (ACA), for underinsured-motorist benefits. A jury returned a verdict for the Kettells for $146,177. The court reduced that amount by the amount received from the original tortfeasor and entered judgment for the difference, with interest. The Kettells accepted the judgment proceeds, then filed their posttrial motions and, ultimately, this appeal. According to the plaintiffs, they filed their posttrial motions to hopefully get a new trial and increase the size of the verdict because “Rick Kettells [had] suffered a decline in his medical condition” since the trial. They accepted the proceeds of the judgment, however, b.ecause to do otherwise “would have jeopardized our 1-⅜ years of interest on $106,765.19”; they did not intend to waive their right of appeal, according to them.

II. The Issue.

While the Kettells raised substantive issues concerning the trial court’s evidence rulings, and ACA responded, we believe the dispositive issue on appeal is the one raised by ACA: Did the Kettells waive their right of appeal by accepting and retaining, for over a year, the proceeds of the judgment?

III. Resolution.

The general rule is that

where a party, knowing the facts, voluntarily accepts the benefits, or a substantial part thereof, accruing to him under a judgment, order, or decree, such acceptance operates as a waiver or release of errors, and estops him from afterward maintaining an appeal or writ of error to review the judgment, order, or decree or deny the authority which granted it....

4 C.J.S. Appeal and Error § 193, at 267-68 (1993). Our case law has generally been consistent with that rule. See, e.g., Wederath v. Brant, 319 N.W.2d 306, 310-11 (Iowa 1982). We noted in that case that

[fjormerly this court was quite strict about waiver upon paying or accepting payment of a judgment. More recently we have relaxed the waiver rule considerably.

Id. at 310.

In Wederath we held acceptance of proceeds under one count did not waive the right to appeal on another count. In that case, we listed several of the more recent cases relaxing the strict rule of appellate waiver. Id. at 310; see also Johnson v. Johnson, 301 N.W.2d 750, 752-53 (Iowa 1981) (appellant accepted $131.86 in payment of taxes and insurance on the subject property as required by the decree; subject of appeal, involving action for partition, was left intact); Medd v. Medd, 291 N.W.2d 29, 32 (Iowa 1980) (acceptance of part of judgment as to which there was no dispute held not to waive right of appeal); Starke v. Horak, 260 N.W.2d 406, 407-08 (Iowa 1977) (appellant accepted only part of proceeds and expressly reserved her right to appeal; no waiver found); Millsap v. Cedar Rapids Civil Serv. Comm’n, 249 N.W.2d 679, 683 (Iowa 1977) (acceptance of reinstatement and back pay did not waive right to appeal demotion); In re Marriage of Abild, 243 N.W.2d 541, 543 (Iowa 1976) (acceptance of uncontroverted part of judgment held not to waive right of appeal); Hegtvedt v. Prybil, 223 N.W.2d 186, 188-89 (Iowa 1974) (payment of judgment under compulsion of court order held not to waive right of appeal); Sound Storm Enters., Inc. v. Keefe, 209 N.W.2d 560, 565 (Iowa 1973) (appellant paid part of fines levied in district court; held not to be a waiver); Vermeer v. Sneller, 190 N.W.2d 389, 395 (Iowa 1971) (appellants paid costs to clear title to property; held not to constitute waiver of appeal).

One authority has given other examples of actions that do not result in appellate waiver:

[T]he right to appeal or bring error is not waived where the judgment or decree is of such a character, or the circumstances are such, that there is no inconsistency between such enforcement and the appeal or proceeding in error, or where the execution is returned unsatisfied, or was issued without authority from appellant who refused to receive the money collected, or where the judgment was executed by the sheriff over appellant’s objection and protest, or where appellant is entitled to the amount of the judgment in any event.
So, also, the right of appeal is not waived by appellant’s action in causing the judgment for an abstract thereof to be recorded, and thereby merely impressing a lien on appellee’s property.

4 C.J.S. Appeal and Error § 196, at 272 (footnotes omitted). None of these exceptions to appellate waiver apply in this case. The plaintiffs, however, argue that their case falls under a new and novel exception, based on the fact the defendant had paid the amount of the judgment into district court. They contend:

Such payment ended Defendant’s obligation to pay interest on the judgment. Therefore, Plaintiffs were left in a precarious situation with respect to their decision to appeal the rulings of the District Court. If the Plaintiffs did not accept the Defendant's check and put the money in the bank, they would lose all of the interest that would accumulate on the monies thereafter. This [loss] of interest would be irreparable if this Court were to ultimately find that the District Court judgment should be affirmed. Were this to happen, the Plaintiffs would have lost in excess of 1-½ years of interest on the payment of $106,765.19. On the other hand, if the Plaintiffs accepted the Defendant’s check in the amount of $106,765.19, they could put the money in the bank and wait to see what the outcome of their appeal was to this Court....
From a [reality] standpoint, the Plaintiffs had no choice but to accept a check from the Defendants. Had they not done so they would have jeopardized over 1-½ years of interest on $106,765.19. In addition, Plaintiffs would submit that there is little doubt about the fact that on any retrial, Plaintiff will be awarded more than the $1⅛6,177 awarded by the jury in the first trial. Plaintiff would submit that the appellate waiver doctrine is inapplicable to the case at bar and the appeal before this Court should be decided on its merits.

(Emphasis added.)

The plaintiffs’ appeal does not merely concern an uncontroverted part of the subject matter of the judgment as it did in some of our cases. Nor did they accept only a portion of the judgment award, such as taxes and insurance, as the appellant did in another case in which we found no waiver. To hold that the plaintiffs’ receipt of the judgment proceeds did not amount to a waiver of the right to appeal, simply so they would not lose interest on the judgment proceeds, would establish a precedent that would encourage plaintiffs to take the suit benefits and then file an appeal in an attempt to get more. While the plaintiffs contend there is “little doubt” they will prevail on any retrial and get even more damages, this is not a certainty. Moreover, it would be unfair to the defendant who, following the trial and the plaintiffs’ acceptance of the judgment proceeds, is entitled to put the matter to rest.

The plaintiffs were not compelled to take the judgment proceeds. They did so only to maintain a hold on the interest collectible on their recovery. We reject their argument that they should be self-appointed custodians of the suit proceeds and be allowed to hold them pending the appeal. Such a theory has no support in law or in practicality. We hold the defendant has established a waiver of the right of appeal, and we therefore dismiss it.

APPEAL DISMISSED.


author: NEUMAN, Justice.

text:
    Lorraine S. DeMOSS, as Administrator of the Estate of Brian S. DeMoss and as Parent of Minors Sarah M. DeMoss and Stuart R. DeMoss, Appellants, v. Raymond M. HAMILTON and Medical Associates of Maquoketa, P.C., Appellees.
    No. 99-1887.
    Supreme Court of Iowa.
    May 8, 2002.
    Rehearing Denied June 27, 2002.

      Thomas L. Staack and Chad A. Swanson of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for appellants.
    James E. Shipman and Allison M. Hef-fern of Simmons, Perrine, Albright & Ell-wood, P.L.C., Cedar Rapids, for appellees.
   NEUMAN, Justice.

Plaintiff Lorraine DeMoss’s husband died of a heart attack several hours after he was examined and treated by defendant Raymond Hamilton, D.O., at the Jackson County Public Hospital in Maquoketa. DeMoss sued Hamilton and his medical group, Medical Associates of Maquoketa, P.C., for malpractice. On this appeal following the jury’s verdict for the defendants, DeMoss alleges trial court eviden-tiary and instructional error warranting a new trial. At issue are questions concerning when, if ever, a patient’s fault may be considered by the jury and compared with the alleged fault of the doctor. Although a comparative fault instruction was erroneously given here, we need not reverse because the jury answered a special interrogatory finding the doctor without fault whatsoever. We therefore affirm.

I. Background Facts and Proceedings.

On May 1, 1996, thirty-two year old Brian DeMoss experienced chest pains that prompted him to seek medical attention at the Jackson County Public Hospital. He was examined in the emergency room by his physician, Dr. Raymond Hamilton. Hamilton observed recurrent bronchitis with a low-grade fever and productive sputum. He also noted that Brian was experiencing discomfort in the lower right sternal and rib region. Hamilton ordered an electrocardiogram. It reportedly showed no acute changes. Blood pressure and cardiac enzyme screens likewise tested within normal limits. Hamilton discharged Brian with a prescription for antibiotics and instructions to “[rjecheck on Friday if not improved.”

Early the next morning, Brian suffered a heart attack at his home and died. This malpractice action was brought by his wife, Lorraine DeMoss, as the administrator of his estate and parent of their two minor children. Her petition alleged that Hamilton’s negligent care and treatment proximately caused Brian’s death. She sought damages for wrongful death as well as recovery of consortium damages, individually and on behalf of her children.

During discovery, greater detail about Brian’s medical history emerged. Early onset of coronary disease runs in Brian’s family. His mother suffered a myocardial infarction at age forty-seven, his father at age forty-four. In 1994, Brian suffered a heart attack while attending a truck-driving course in Alabama. He was treated successfully with angioplasty and thrombo-lytics. His physicians warned, however, that he must stop smoking and pursue an aggressive exercise regimen to lower his weight and cholesterol. Brian evidently understood these recommendations but was unable to effectively implement them.

Anticipating that Hamilton would use Brian’s health history as a defense tool at trial, DeMoss moved in limine to exclude any evidence or argument suggesting that her claims should be reduced by proof that Brian “failed to begin an exercise program, failed to lose weight, failed to stop smoking, and/or failed to have regular follow-up exams after his 1994 heart attack.” Hamilton countered that such proof was relevant to the central issue in the case— Brian’s cause of death. DeMoss disagreed, claiming the record would show that Brian died of a myocardial infarction which, had it been properly diagnosed by Hamilton, could have been treated and his life thereby saved. Hamilton asserted that Brian suffered from chronic congestive heart failure. His death from sudden cardiac arrest, Hamilton argued, was proximately caused by Brian’s negligent failure to heed his cardiologists’ pre-May 1, 1996 advice. He claimed that expert testimony would support that contention at trial.

The district court overruled DeMoss’s limine motion, and the subsequent eviden-tiary objections tendered by her on the same point, thus permitting the jury to consider proof of Brian’s failure to exercise ordinary care in reducing his risk of heart disease. However neither the court’s evi-dentiary rulings nor its jury instructions permitted Hamilton to ascribe fault personally to DeMoss for her failure to encourage or monitor Brian’s compliance with his doctors’ recommendations.

The court’s instructions to the jury permitted consideration of three grounds of fault against Hamilton: failure to obtain an adequate medical history, failure to properly assess and diagnose Brian’s condition, and failure to hospitalize him for further testing and treatment. An “eggshell plaintiff’ instruction advised that if Brian’s heart condition made him more susceptible to injury than a person in normal health, Hamilton was nevertheless responsible for all injuries proximately caused by his negligence. The court also told the jury that if Hamilton was negligent, and his negligence was a substantial factor in reducing Brian’s chance of survival, the jury could award damages to compensate for that loss. Finally, and most pertinent to this appeal, the court instructed the jury (over DeMoss’s objection) that it could assign a percentage of fault to the plaintiff if it found that Brian was at fault “by failing to follow recommendations of the previous physicians,” and that such fault was a proximate cause of the damages sustained by the plaintiff.

Upon submission of the case, the jury returned a special verdict finding Hamilton without fault. The district court denied DeMoss’s motion for new trial and this appeal followed. Our review is limited to the correction of errors at law. Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294, 295 (Iowa 1994).

II. Issue on Appeal.

DeMoss’s appeal focuses on the evidence regarding Brian’s conduct as it bears on the state of his health when he presented himself in the emergency room on May 1, 1996. At the outset we note that both parties seem to agree that such evidence was relevant and admissible- on the question of Brian’s life expectancy and lost chance of survival. This court has previously observed, in a medical malpractice context, that a patient’s preexisting condition may be considered “in assessing the value of the interest destroyed or affected.” Wendland v. Sparks, 574 N.W.2d 327, 331 (Iowa 1998) (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1361 (1981)).

DeMoss’s real quarrel is with the court’s submission of a comparative fault instruction. Thus she frames the issue on appeal this way:

[Wjhether, in a medical malpractice case, a jury can hear evidence and assess fault against the patient (or the patient’s representative) when the patient’s conduct provides the occasion for medical attention which forms the basis for the medical malpractice claim, or when the patient’s conduct contributes to an illness or condition for which the patient seeks medical attention and which forms the basis for the medical malpractice claim.

In short, DeMoss contends that Brian’s conduct before encountering Hamilton is irrelevant to the issue of Hamilton’s alleged misdiagnosis. Her argument stems from the fundamental proposition that, under the guise of comparative fault, “a physician simply may not avoid liability for negligent treatment by asserting that the patient’s injuries were originally caused by the patient’s own negligence.” Fritts v. McKinne, 934 P.2d 371, 374 (Okla.Civ.App. 1996). In other words, even a patient who suffers a self-inflicted injury is entitled to non-negligent medical treatment and “an undiminished recovery if such subsequent non-negligent treatment is not afforded.” Id. (quoting Martin v. Reed, 200 Ga.App. 775, 409 S.E.2d 874, 877 (1991)).

Hamilton responds by asserting, correctly, that a patient’s negligent conduct may be considered in limited circumstances. For example, a patient’s failure

to cooperate with or follow reasonable directions for the treatment of an ailment may be relevant in the appropriate case. Id.; see Jalaba v. Borovoy, 206 Mich.App. 17, 520 N.W.2d 349, 352 (1994) (patient increased foot injury by failing to use crutches, justifying comparative fault instruction); see generally Lawrence E. Blades & Charles A. Blades, Iowa Tort Guide § 19.26 at 258 (5th ed.2000); 22 Am.Jur.2d Damages § 533, at 614 (1988); cf. Wambold v. Brock, 236 Iowa 758, 763, 19 N.W.2d 582, 584 (1945) (no basis for claim of contributory negligence where doctor, who claimed patient’s injury resulted from failure to wear bandage, neglected to advise patient to do so).

The parties are at odds over the application of these legal maxims here. While plaintiffs argument focuses solely on Hamilton’s action (or inaction) concerning Brian’s fatal heart attack, the defendant focuses almost exclusively on the impact of Brian’s failure to heed the advice of doctors treating his last heart attack. But the question is which conduct is relevant to the cause of action. In Fritts, for example, where the plaintiff alleged negligence in medical procedures performed several days after a collision stemming from the patient’s drunk driving, the Oklahoma court distinguished a proper defense from an improper one this way:

[The doctor] denied that his treatment of Fritts deviated in any manner from the appropriate standard of care. He defended against the allegations of negligence by contending that, due to Fritts’ unusual anatomy and the resulting injury to his artery from the high speed impact, the rupture of the artery was inevitable. This was a proper and appropriate defense. However, we conclude that the interjection of the issue of Fritts’ possible negligence in the automobile accident, a matter unrelated to
the medical procedures, was a substantial error that removed the jury’s consideration from the relevant issues and led to an erroneous excursion into irrelevant and highly prejudicial matters.

Fritts, 934 P.2d at 374. The distinction drawn by the court in Fritts is consistent with the majority rule, advanced by De-Moss, that

to be considered as and constitute contributory negligence in a medical malpractice action, a patient’s negligence must have been an active and efficient contributing cause of the injury, must have cooperated with the negligence of the malpractitioner, must have entered into proximate causation of the injury, and must have been an element in the transaction on which the malpractice is based. Accordingly, in a medical malpractice action, the defense of contributory negligence is inapplicable when a patient’s conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based.

Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178, 186-87 (1990) (patient’s failure to heed doctor’s advice to lose weight may have caused pulmonary embolism but is irrelevant to claim that doctor later negligently treated the condition); accord Matthews v. Williford, 318 So.2d 480, 483 (Fla.Dist.Ct.App. 1975) (patient’s failure to follow advice to quit smoking following heart attack ten years earlier too remote to support comparative fault instruction); Van Vacter v. Hierholzer, 865 S.W.2d 355, 360 (Mo.Ct. App.1993) (reversal warranted where comparative fault instruction invited jury to apportion fault based on conduct not proximately causing death); Gravitt v. Ward, 258 Va. 330, 518 S.E.2d 631, 635 (1999) (insufficient proof of patient’s failure to notify doctor of breast lump to warrant comparative fault instruction).

Applying these principles to the case before us, it is tempting to conclude that the temporal proximity as well as the causal relationship between Brian’s conduct and his heart disease makes for a closer call on proximate cause than the cases upon which DeMoss relies. In fact the case is not unlike Fritts, where the court noted the relevance of the patient’s peculiar anatomy as it bore on the proximate cause-of-death issue. See Fritts, 934 P.2d at 374. But our threshold question must be what is the conduct at issue? See Greenwood v. Mitchell, 621 N.W.2d 200, 207-08 (Iowa 2001) (noting importance of distinguishing defendant’s fault in running over plaintiff from plaintiffs subsequent failure to mitigate damages). Any “fault” on Brian’s part for conduct contributing to his heart attack is simply irrelevant to the question of medical negligence underlying DeMoss’s cause of action. Only if Hamilton were found at fault for alleged misdiagnosis or treatment would Brian’s state of health become potentially relevant to the remaining questions of proximate cause, lost chance of survival and life expectancy. And on those questions, whether his state of health resulted from poor lifestyle choices or bad genes would make no difference.

We conclude that the record did not support a comparative fault instruction here. It was error for the court to permit the jury to compare Brian’s fault with Hamilton’s on the question of Hamilton’s breach of duty of care to his patient.

The court’s error in giving a comparative fault instruction does not require reversal, however, because DeMoss has suffered no prejudice. The court’s instructions and verdict form called upon the jury to first determine the fault, if any, attributable to Hamilton before proceeding to consider the alleged fault of Brian. The jury found no causal fault on Hamilton’s part and, so, in accordance with the court’s direction, answered none of the remaining interrogatories. As a result, error, if any, in the instruction dealing with Brian’s comparative fault had no effect on the verdict. Spahr v. Kriegel, 617 N.W.2d 914, 917 (Iowa 2000); Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993).

Because no error warranting reversal appears, we affirm the judgment of the district court.

AFFIRMED.


text:
    Duane GEORGE, Appellant, v. KEOKUK COUNTY BOARD OF SUPERVISORS and Keokuk County Engineer, Appellees.
    No. 99-1805.
    Supreme Court of Iowa.
    May 8, 2002.

      James C. Larew of Larew Law Office, Iowa City, for appellant.
    Carlton G. Salmons of Gaudineer & Comito, L.L.P., West Des Moines, for ap-pellees.
   LARSON, Justice.

Duane George, who applied for a job with the Keokuk County Highway Department, claimed the board of supervisors failed to accord him the hiring preference provided by Iowa Code chapter 35C (1999). The district court dismissed the appeal, and we affirm.

Duane George is a veteran of the Vietnam war. He applied for an equipment operator’s position with the Keokuk County Highway Department. Approximately twenty other people also applied for the position. George was notified on July 26, 1999, that another applicant had been hired. The board of supervisors approved hiring the successful candidate on August 2.

George mailed to both the board and the county engineer a “notice of appeal,” claiming a veteran’s preference for the job position under chapter 35C. The board received the mailed notice and responded by providing the statutorily required information before it raised any objection to the mailed notice of appeal. It later objected to the mailed notice through its motion to dismiss.

Iowa Code section 35C.5 provides the method of appealing the board’s decision in a veteran’s preference case.

In addition to the remedy provided in section 35C.4 [mandamus], an appeal may be taken ... from any refusal to allow [a veteran’s] preference, as provided in this chapter, to the district court of the county in which such refusal occurs. The appeal shall be made by serving upon the appointing board within twenty days after the date of the refusal of said appointing ... board ... to allow said preference, a written notice of such appeal stating the grounds of the appeal; a demand in writing for a certified transcript of the record, and all papers on file in the office affecting or relating to said appointment.

(Emphasis added.) The meaning of the word “serving” is at the heart of this appeal.

On September 15, 1999, the board moved to dismiss the appeal to district court, claiming George had failed to comply with the statutory requirements for perfecting an appeal. Specifically, the board argued that George mailed his notice of appeal, and as a matter of law, that does not constitute “service” under the statute.

George resisted the motion to dismiss, claiming that, because Iowa Code section 35C.5 is silent on how to serve a notice of appeal, service by ordinary mail, according to Iowa Rule of Civil Procedure 106, should suffice. (Rule 106 has recently been renumbered as rule 1.442.) He contends mailed notice is sufficient because, as an appeal, “service” should be controlled by Iowa Rule of Appellate Procedure 6 (recently renumbered as rule 6.6), which by referring to Iowa Rule of Civil Procedure 106, allows for service by mail.

We disagree with this analysis. Appeals to this court are not perfected by mailing but by filing a notice of appeal in the district court. Iowa R.App. P. 6(a). The provision under rule 6 for serving by mail is for serving other parties: “The appellant shall serve a copy of the notice on each other party or his counsel in the manner prescribed in R.C.P. 106.” This mailed notice is not the means of perfecting an appeal to our court; in fact, we have held that mailed service of notice to other parties is not even jurisdictional. See Rowen v. LeMars Mut. Ins. Co. of Iowa, 347 N.W.2d 630, 638 (1984) (“Because an appeal may be ‘taken and perfected’ without service of the notice, we conclude that notice is not jurisdictional.”).

George relies on rule 106, which allows service by mail. However, the rule is applicable to “everything required by these rules to be filed ... and every written notice ... and similar paper shall be served upon each of the parties.” Iowa R. Civ. P. 106(a). Rule 106(b), in turn, provides “[sjervice shall be made by delivering [or] mailing ... a copy to the attorney or.the party at the attorney’s or party’s last known address.... ” (Emphasis added.) George’s reliance on the mailing provisions of rule 106 is misplaced because the rule is inapplicable by its terms; it applies only to notices and other papers “required by these rules [of civil procedure].” Iowa R. Civ. P. 106(a). The notice at issue in this ease is not required by our rules but by statute. Rule 106 is therefore inapplicable. See In- re Elliott, 319 N.W.2d 244 (Iowa 1982).

Elliott argues this rule [regarding service of notice] should be liberalized by ' adopting the concepts of rule of civil procedure 82(b) [later rule of civil procedure 106], which with respect to papers required to be filed and served “by these rules” provides that service may be made by mail and that service is complete upon mailing. The [civil service] appeal procedure, however, is not controlled by “these rules”.... Although appeals to this court may be implemented by rule [106], that is because Iowa Rule of Appellate Procedure 6(a) specifically so provides.

Id. at 247. In Elliott we held the mailing of notice of appeal in circumstances similar to this case was insufficient to vest appellate jurisdiction in the district court. Id.; see also State v. Hansen, 244 Iowa 145, 148, 55 N.W.2d 923, 924 (1952) (statutory requirement that fire inspector “serve or cause to be served” notice of violations of fire code not satisfied by mailed notice). In Hansen we said, as to served notices in general,

the terms “served” or “caused to be served”, especially when used in connection with Official Notices, have acquired the peculiar and appropriate meaning given to “service of original notices” in the absence of anything to the contrary appearing.

244 Iowa at 148, 55 N.W.2d at 924. George does not contend the board waived any objection it had to the defective service by responding to the mailed notice and producing the papers required by chapter 35C.

We hold that the district court properly dismissed the appeal for George’s failure to serve notice of his appeal on the county board of supervisors. Elliott, 319 N.W.2d at 247.

The board of supervisors, as an alternative argument, contends that George waived his right to appeal by maintaining a mandamus action in district court while he was pursuing an appeal to this court. It is unnecessary to address this argument in view of our disposition of the case. We conclude the dismissal of the appeal should be affirmed, and it is so ordered.

AFFIRMED.

      . While filing is required to perfect an appeal, it is true that serving a notice of appeal by mail is sufficient to toll the time requirement for filing so long as the actual filing is accomplished within a reasonable time. See Iowa R. Civ. P. 106(d); State v. Totsdorf, 574 N.W.2d 290, 291 (Iowa 1998).


author: CADY, Justice.

text:
    Robert G. CLARK and Kathleen Clark, Appellants, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellee.
    No. 00-1969.
    Supreme Court of Iowa.
    May 8, 2002.

      Ronald L. Mountsier of Smith, Schneider, Stiles & Serangeli, P.C., Des Moines, for appellants.
    Thomas J. Miller, Attorney General, Harry M. Griger, Special Assistant Attorney General, and Valencia Voyd MeCown, Assistant Attorney General, for appellee.
   CADY, Justice.

The Iowa Department of Revenue and Finance assessed taxes and penalties against Robert and Kathleen Clark for failing to report embezzled income as taxable income in their joint tax returns for the years 1983 through 1993. The district court upheld the Department’s assessments. We affirm the decision of the district court.

I. Background Facts and Proceedings.

This appeal stems from the embezzlement of approximately $1 million by Robert Clark from Iowa Methodist Medical Center (IMMC) over a period of eleven years. At the time of the embezzlement, Robert was the director of IMMC’s pharmacy. He received his pharmacy degree from the University of Iowa, and completed post-graduate work at Drake University. Robert’s wife, Kathleen, was also a college graduate, and worked as a substitute elementary school teacher during 1986 and 1987.

Early in 1994, IMMC terminated Robert’s employment for reasons unrelated to these proceedings. Following his discharge, IMMC noticed financial discrepancies in its accounts, and an extensive internal investigation subsequently concluded Robert had diverted approximately $900,000 from an account established to operate the Iowa Poison Information Center (IPIC), in addition to approximately $100,000 in cash from the pharmacy’s cash registers. Robert had signatory authority under the IPIC account. The account was established to fund a hotline for answering questions concerning the ingestion of poisonous substances. Before the embezzlement began in 1983, the IPIC account contained $38.92. Over the next ten years, the IPIC account experienced an overwhelming influx of deposits and withdrawals made by Robert.

There were three means utilized by Robert to accomplish his embezzlement through the IPIC account. First, Robert deposited drug rebates from pharmaceutical companies into the IPIC account instead of into IMMC’s bank accounts. Likewise, Robert deposited payments made by hospital patients and employees for prescription drug purchases from the out-patient and main hospital pharmacies into the IPIC account. Additionally, Robert misappropriated “loan and borrow” repayments. The IMMC pharmacy often “loaned” medicine to other pharmacies that had run out of certain prescription drugs. The “borrowing” pharmacy would either compensate IMMC by replacing the borrowed medicine or paying the cost of the drug. Robert often deposited the latter repayments into the IPIC account.

Robert used the embezzled money to make mortgage payments on his home, pay personal credit card bills, and pay other personal expenses. Sometimes, Robert drew checks directly from the IPIC account to make these payments. Other times, Robert would write a check to Kathleen, who would then deposit the check into her own account. Kathleen would then write a check to Robert who would, in turn, deposit the check into his own account. Although both Robert and Kathleen had separate banking accounts, they both had authority to write checks from the other’s account, and frequently exercised this authority. This evidence led IMMC to conclude Kathleen- knew of her husband’s embezzlement and, in fact, aided him in laundering money.

Additionally, IMMC relied on Kathleen’s standard of living as further evidence of her knowledge of Robert’s embezzlement. Kathleen and Robert’s expenditures and standard of living greatly exceeded their reported income as reported on their joint tax returns. For example, in the 1989 taxable year, they purchased art and incurred travel expenses exceeding twenty percent of their combined taxable income. In 1989 alone, they took at least three vacations, all of which involved round-trip air travel and lodging at luxurious hotels. During the eleven years of the embezzlement scheme, Kathleen and Robert never reported annual taxable income in excess of $37,000.

A review of the other taxable years also indicated a high standard of living enjoyed by both Robert and Kathleen compared to their reported income. They purchased $9,349.36 of clothing at an exclusive women’s clothing store over a two-year period. A check was drawn from the IPIC account to pay $11,816.16 in charge account purchases at Von Maur, a clothing department store. Furthermore, the Clarks purchased $37,845 in jewelry from a local jewelry store. Their home was extensively refurbished. Records showed they paid $52,735.67 in interior decorator services and $16,710.41 for art gallery purchases. Furthermore, their American Express credit card totaled $34,226 during the years 1988 to 1993, which largely included travel and ■ lodging expenses throughout the United States.

Ultimately, IMMC’s investigation was turned over to the county attorney, who filed a trial information against both Robert and Kathleen Clark on November 2, 1994. Robert was charged with thirteen counts of first-degree theft, while Kathleen was charged with seven counts. Robert subsequently pled guilty to ten counts of first-degree theft, in exchange for the dismissal of the remaining three counts against him and the seven counts against Kathleen. The district court accepted the plea, and sentenced Robert to incarceration.

Following an audit by the Internal Revenue Service, the Iowa Department of Revenue and Finance investigated the Clarks’ tax returns for the years 1983 through 1993. The Clarks had filed joint returns for those years, and did not report the income Robert embezzled from IMMC as taxable income in any of the years. On May 23, 1997, the Department notified the Clarks it was assessing tax penalties for their failure to include the embezzled income in their tax returns. The Clarks protested the assessments.

In the spring of 1998, Kathleen and Robert filed amended Iowa individual income tax returns for the years 1983 through 1993. The separate amended returns showed the filing status of “Married filing separate returns.” The amended returns by Kathleen showed no tax liability due for any tax year. The Department did not accept the amended returns.

A contested ease hearing on the assessments was held on June 23, 1998. Several witnesses testified. James Rasmussen, director of internal audit at IMMC, described his investigation of Robert’s embezzlement scheme. Ray Prestí, private investigator for IMMC, supported Rasmussen’s testimony and detailed the evidence he discovered in investigating the Clarks’ case. Paul Jackson, the Department revenue examiner who recommended against accepting the Clarks’ amended tax returns, also testified. He believed the returns were inadequate and incomplete because they contained estimated interest income and did not include the tax penalties. Moreover, he believed Iowa’s tax code did not permit such amendments.

Both Robert and Kathleen provided limited testimony. Robert testified he did not know he was required to report embezzled income as taxable income. Kathleen testified she was unaware of her husband’s embezzlement scheme. The administrative law judge later deemed their testimony was not credible. The judge upheld the Department’s tax assessments in a written ruling. The Clarks petitioned for judicial review.

The district court denied the Clarks’ petition for judicial review. It agreed with the agency’s conclusion that Kathleen could not amend her filing status to avoid joint liability. The district court further found substantial evidence of fraud to support the Department’s assessments for willfully filing false returns. Lastly, the district court found the administrative law judge’s findings were based on admissible evidence.

The Clarks appeal. They first contend the assessments were not permissible because joint liability did not exist for married taxpayers filing jointly in Iowa prior to 1994. Alternatively, they contend Kathleen cannot be liable for the assessments because she filed amended tax returns changing her filing status from married filing joint to married filing separate. Additionally, they claim the district court applied erroneous legal standards in finding there was substantial evidence of fraud. The Clarks further argue the agency relied on inadmissible evidence in upholding the Department’s findings.

II. Standard of Review.

We review the final decision of an agency concerning the imposition of tax assessments by the Department for errors. Iannone v. Iowa Dep’t of Revenue & Fin., 641 N.W.2d 735, 738 (Iowa 2002). We will uphold the agency’s findings if they are supported by substantial evidence in the record. Id. Moreover, we accord deference to the agency’s decision on witness credibility. Peoples Mem’l Hosp. v. Iowa Civil Rights Comm’n, 322 N.W.2d 87, 92 (Iowa 1982). Likewise, we respect the expertise of the agency on matters involving its informed discretion, particularly on technical issues. See Al-Khattat v. Eng’g & Land Surveying Examining Bd., 644 N.W.2d 18, 23 (Iowa 2002); Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 839 (Iowa 2002); Peoples Mem’l Hosp., 322 N.W.2d at 92. Furthermore, the taxpayer challenging the tax assessment has the burden of proving the Department’s decision was erroneous. Iannone, 641 N.W.2d at 738-39.

III. Joint Liability Based on Joint Tax Return.

Iowa Code section 422.21 (1993) prescribes the form of and time frame for filing tax returns. Our legislature amended the section in 1994 to add the following provision:

If married taxpayers file a joint return ... both spouses are jointly and severally liable for the total tax due on the return, except when one spouse is considered to be an innocent spouse under criteria established pursuant to section 6013(e) of the Internal Revenue Code.

1994 Iowa Acts ch. 1165, § 16 (codified at Iowa Code § 422.21 (1995)). The Clarks maintain that the absence of the amendment prior to 1994 indicates Iowa did not recognize joint liability for joint tax returns prior to that time.

Contrary to the Clarks’ contention, we do not believe this amendment created joint liability in Iowa. Instead, we believe the legislature intended to create an exception to the preexisting common law principle of joint liability for joint acts when it amended section 422.21, and merely stated the principle or rule of joint liability in the context of recognizing an exception to the rule.

The general concept of joint liability has existed in Iowa for many years in various areas of the law. See, e.g., State, Dep’t of Human Servs. v. Unisys Corp., 637 N.W.2d 142, 152-53 (Iowa 2001) (a party may seek contribution from another if they are jointly liable); Gremmel v. Junnie’s Lounge, Ltd., 397 N.W.2d 717, 723 (Iowa 1986) (joint liability between the direct perpetrator and the aider and abettor of an assault); Wiedenfeld v. Chicago & N.W. Transp. Co., 252 N.W.2d 691, 695 (Iowa 1977) (master and servant both liable for servant’s tort committed in course of employment); Turner v. Hitchcock, 20 Iowa 310, 316 (1866) (recognizing the existence of joint liability in tort law), overruled in part on other grounds by Dungy v. Benda, 251 Iowa 627, 637, 102 N.W.2d 170, 176 (1960) (overruling holding that full release from liability of one joint tortfeasor does not release other joint tortfeasors), overruled by Cmty. Sch. Dist. of Postville v. Gordon N. Peterson, Inc., 176 N.W.2d 169,175 (Iowa 1970) (holding the release of one obligor does not automatically release the remaining co-obligors). Likewise, joint liability has existed in federal tax law for years. As a general rule, married taxpayers filing joint income tax returns are considered jointly and severally liable for taxes reported due on their combined income, and for additional amounts of tax relating to the initial returns later deemed to be owed. See 26 U.S.C. § 6013(d)(3) (1989); accord Furnish v. Comm’r of Internal Revenue, 262 F.2d 727, 731 (9th Cir.1958); Schwimmer v. Comm’r of Internal Revenue, 72 T.C.M. (CCH) 301 (1996); Estate of Molever v. Comm’r of Internal Revenue, 64 T.C.M. (CCH) 1662 (1992). However, if a spouse satisfies certain conditions, that spouse is labeled an “innocent spouse” and is relieved from the tax liability created by the other spouse. See 26 U.S.C. § 6013(e); see also Schwimmer, 72 T.C.M. (CCH) at 301; Estate of Molever, 64 T.C.M. (CCH) at 1662. The innocent spouse relief provisions were promulgated to remedy the injustice sometimes created by operation of the rule of joint liability. Estate of Molever, 64 T.C.M. (CCH) at 1662 (legislative history of federal act indicated innocent spouse relief provisions intended to prevent joint liability where “a husband embezzles funds and omits the proceeds from gross income” and the wife has no reason to know of the embezzlement activity). Joint liability for joint conduct is a longstanding legal principle that properly applies to obligations imposed under tax statutes.

We also observe that the Department has specifically recognized joint liability of married taxpayers in tax cases predating the amendment to section 422.21. See In re Dennis R. Myer & Norma Jean Myer, Nos. 88-20-1-0179, 90-20-1-0076, 1992 WL 511440, at *4-5 (June 17, 1992) [hereinafter In re Myer]. Although we do not consider previous decisions of the Department as precedent, they serve as guidance in our review of claims with no applicable case law. See 47A C.J.S. Internal Revenue § 10, at 55 (2002) (court may consider long-standing agency construction if reasonable). In In re Myer, the Department found the married taxpayers in that case had willfully filed false returns with the intent to evade payment of tax. Because the married taxpayers filed joint returns, they were subject to the principle of joint liability. As noted by the administrative law judge who denied Myers’ protest, “When married couples decide to take advantage of the tax laws by signing and filing only one return as a unit, they must also bear the concomitant statutory responsibilities and liabilities which accompany that decision.” In re Myer, 1992 WL 511440, at *5. Thus, when married taxpayers file a joint tax return, they must realize they are sharing the liabilities as well as the benefits stemming from the combined return.

In short, married taxpayers understand they are sharing responsibility for the tax reported due on the filed return. If an audit reveals additional tax is due from the joint return, married taxpayers also share responsibility for the additional tax. See Furnish, 262 F.2d at 731 (“[Joint] liability covers not only the basic tax but also any addition to the tax on account of fraud....”). The amendment to section 422.21 did not create this principle. On the contrary, it merely created an exception to the principle that joint filers assume joint liability for the return.

IV. Authority to Amend Filing Status.

After receiving the tax assessment notices from the Department, Kathleen and Robert Clark sought, to amend their joint tax returns to change their filing status to married filing separate. Although no statute in our tax code prohibits such an amendment, no statute permits it. The provisions of the code discussing the amendment of tax returns only pertain to claims for refunds or credits for overpay-ments due the taxpayer. See Iowa Code § 422.73(2) (discussing limitations periods for taxpayers to amend returns to claim income tax refund or credit); see also Iowa Admin. Code r. 701 — 43.3 (1999) (discussing claims for refunds and corresponding statutes of limitations). Similarly, the administrative rule that requires filing amendments to tax returns applies when a taxpayer learns “the amount of income reported to be federal net income or Iowa taxable income was erroneously stated on the Iowa return, or changed by an Internal Revenue Service audit, or otherwise .... ” Iowa Admin. Code r. 701 — 39.3(4) (1997).

It is clear neither the Code nor the administrative regulations contemplate the filing of amended returns by taxpayers to change filing status after the taxpayers have been jointly assessed taxes and penalties for the failure to report embezzled funds as income on a joint return. Moreover, there would be no legitimate purpose in amending the filing status under such circumstances. If the spouse is an innocent taxpayer, the amendment is unnecessary because there is no liability for the spouse based upon the joint return. If the spouse is a culpable taxpayer, the amendment will not eliminate the culpability.

We do not believe the legislature contemplated the amendment of tax returns to change the filing status as a means to insulate joint filers from joint liability for the contents of the return. The legislature provided for the amendment of returns in order to permit taxpayers to correct inaccuracies or inconsistencies, not to avoid tax liability. See Iowa Code § 422.73(2); Iowa Admin. Code r. 701 — 39.3(4).

V. Fraudulent Intent.

Iowa Code section 421.27(4) imposes a penalty on taxpayers who willfully file a false return with the intent to evade tax. This penalty is substantial and is currently set at seventy-five percent of the amount involved. Iowa Code § 421.27(4). The underlying purpose of the tax penalty is to reimburse the government’s expenses for auditing the returns and the actual loss in revenue resulting from the taxpayer’s fraud. Scallen v. Comm’r of Internal Revenue, 877 F.2d 1364, 1369 (8th Cir.1989).

The Department has the burden of proving fraud by clear and convincing evidence. Id. A finding of fraud is a question of fact that will be upheld if supported by substantial evidence in the record. Id.; Edelson v. Comm’r of Internal Revenue, 829 F.2d 828, 832 (9th Cir.1987). Because direct evidence of fraud rarely exists, we may infer the intent to defraud by examining circumstantial evidence. Id; see State v. Johnson, 196 N.W.2d 563, 567 (Iowa 1972) (“an intent to defraud may properly be inferred from circumstances, words, and actions shown in evidence”).

We begin by observing the legal standard applicable to the penalty imposed by section 421.27(4). It is commonly referred to as the fraud penalty, Scallen, 877 F.2d at 1369, although the statutory standard that guides the imposition of the penalty is “willfully filing a false return ... with the intent to evade tax,” Iowa Code § 421.27(4).

In discussing the use of circumstantial evidence to establish fraud, the district court in its written decision indicated fraud under the penalty statute was “not a specific intent offense.” The Clarks assert this is an incorrect legal conclusion, and therefore the district court utilized the wrong legal standard in considering the evidence.

We have previously indicated the word “willfully” contained within the text of the statute does not require proof of “evil motive or intent,” but is established by “proof of a voluntary and intentional violation of a known legal duty.” State v. Osborn, 368 N.W.2d 68, 70 (Iowa 1985); accord Cheek v. United States, 498 U.S. 192, 201, 111 S.Ct. 604, 610,112 L.Ed.2d 617, 629 (1991). However, in addition to willfulness, section 421.27(4) requires an “intent to evade tax.” Thus, intent is a predicate element to the imposition of the penalty. Nevertheless, our review is from the assessments imposed by the Department. There is no claim the Department applied the incorrect legal standard. Thus, we turn to the record to consider the evidence.

In reviewing the sufficiency of evidence in cases involving claims of false returns, courts frequently consider certain “badges of fraud.” Two such “badges” are the “consistent and sizeable underreporting of income” and a method which makes the tracing of the embezzled income difficult. Scallen, 877 F.2d at 1370; accord Furnish, 262 F.2d at 729. Furthermore, the “intelligence and sophistication of the taxpayer ... is an important factor” to consider. Scallen, 877 F.2d at 1370-71. Additionally, courts consider the concealment of assets and the attempt to conceal an illegal activity such as embezzlement as indicative of fraudulent intent. United States v. Guidry, 199 F.3d 1150, 1157 (10th Cir. 1999); Furnish, 262 F.2d at 728-29; Wheadon v. Comm’r of Internal Revenue, 64 T.C.M. (CCH) 1172 (1992). Each of these badges of fraud is present in this case.

First, Robert and Kathleen consistently reported a taxable income substantially lower than they were actually enjoying for eleven years. An examination of a three-year period clearly reveals the substantial understatements. For instance, in the taxable year 1991, the Clarks reported a taxable income of $27,055, while Robert diverted income of $110,879 from IMMC. In 1992, they reported $30,923 taxable income, and embezzled $255,055. In 1993, they diverted $170,417, and reported only $34,342. At the same time, Robert and Kathleen were spending large sums of money. While we recognize that understatements of income alone are insufficient to demonstrate fraudulent intent, “[t]he record in this case is replete with other indicia of fraud.” Wheadon, 64 T.C.M. (CCH) at 1172; accord Furnish, 262 F.2d at 728-29.

The income omitted by the Clarks originated from the creation of an elaborate embezzlement scheme of misappropriating pharmacy funds into an account which was entrusted to Robert. “It is a fair inference that someone who would embezzle from his employer will conceal such receipts from the government with intent to evade taxes.” Foster v. Comm’r of Internal Revenue, 57 T.C.M. (CCH) 661 (1989); accord Barbieri v. Comm’r of Internal Revenue, 61 T.C.M. (CCH) 2422 (1991) (“knowingly engaging] in an illegal activity ... is evidence of a disposition to defraud”). Furthermore, the evidence supports a finding that Robert and Kathleen attempted to conceal the embezzled money by laundering it through different accounts. See Scallen, 877 F.2d at 1371; Furnish, 262 F.2d at 729. In fact, the IMMC investigators were unable to conclusively determine the exact amount of money misappropriated, due to the difficulty of tracing the cash flow through the Clarks’ accounts. See Scallen, 877 F.2d at 1371 (an intent to evade taxes is found when taxpayer utilized a scheme making it difficult to trace the cash flow). Moreover, both Robert and Kathleen were intelligent and well-educated individuals, as further demonstrated by their elaborate scheme.

Although the Clarks do not dispute that taxes were underpaid due to the failure to report the embezzled income, they assert the Department impermissibly presumed fraud to support the imposition of the penalty by utilizing a presumption that they had knowledge of their obligation under the tax laws to report embezzled income. However, this claim misconstrues the nature of the presumption in this case. A presumption of knowledge of the law does not further serve as a presumption of fraud. Instead, it is part of the totality of the circumstances to support a finding of fraud. To prove fraud, the Department must negate the protesting taxpayers’ claims of ignorance. Cheek, 498 U.S. at 202, 111 S.Ct. at 610-11, 112 L.Ed.2d at 630 (“This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist.”).

It is a well-established principle that ignorance of the law is no excuse. Id. at 199, 111 S.Ct. at 609, 112 L.Ed.2d at 628; Millwright v. Romer, 322 N.W.2d 30, 33 (Iowa 1982). We have consistently held that individuals are presumed to know the law. Millwright, 322 N.W.2d at 33; accord Cheek, 498 U.S. at 199, 111 S.Ct. at 609,112 L.Ed.2d at 628. Nevertheless, we acknowledge that the tax code can be confusing. See 47A C.J.S. Internal Revenue § 10, at 54 (recognizing the complexity of the taxation system). Yet, we have charged citizens with knowledge of the law, even when it can be complex and confusing. Millwright, 322 N.W.2d at 33 (“We find that plaintiffs, under the vigilance which the law requires of them, should have known that the will violated the rule against perpetuities.”). Moreover, embezzled income has been labeled as taxable income under federal law since 1961. See James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 1056, 6 L.Ed.2d 246, 254-55 (1961); see also 47A C.J.S. Inter nal Revenue § 59, at 190 (taxpayer must report illegally acquired income even though taxpayer is not entitled to retain the money and may have to later reimburse the person whom he or she defrauded). The Internal Revenue Service, as well as state tax authorities, publish numerous materials to guide taxpayers in the preparation of their taxes. See 47A C.J.S. Internal Revenue § 10, at 55. These factors help support the existence of the presumption of knowledge.

We also reject Kathleen’s claim of ignorance of her husband’s misappropriations. We agree with the agency’s finding that her testimony on this issue was not credible. Kathleen may not have been the “moving spirit” in the embezzlement, but this is irrelevant to the issue of her tax liability. See Howell v. Comm’r of Internal Revenue, 175 F.2d 240, 241 (6th Cir. 1949). We find the evidence shows Kathleen played a significant role in the embezzlement scheme. As noted, she aided Robert in concealing the embezzlement by laundering funds through their banking accounts. Even assuming Kathleen did not actually participate in the actual money laundering, the evidence supports a finding she had reason to know of the illegal activity. See In re Clark, 106 B.R. 602, 604 (Bankr.E.D.Mo.1989). Kathleen had access to both her and Robert’s accounts, and the records of these accounts were available for her inspection. See id.

Moreover, Kathleen directly benefited from the embezzled income. See id. at 605. She and Robert took numerous trips requiring round-trip air travel during the time periods in question and stayed at luxurious hotels. See id. Their home was extensively redecorated and furnished with paintings from art galleries throughout the United States. See id. Kathleen personally dealt with the interior decorator and chose many of the paintings. Furthermore, she purchased a significant amount of women’s clothing and received expensive jewelry. Considering the reported taxable incomes, a reasonable person in Kathleen’s position would be expected to know such a lifestyle was not possible to maintain on the level of income reported on the returns. See id. at 604. She was not permitted to close her eyes to the numerous factors indicating her husband was embezzling income from his employer. Under the circumstances of this case, it is not inequitable for the law to hold Kathleen liable for the tax penalties and other assessments for the omitted income. See id. at 605. To hold otherwise would “perpetuate the injustice of relieving embezzlers of the duty of paying income taxes on the money they enrich themselves with through theft while honest people pay their taxes on every conceivable type of income.” James, 366 U.S. at 221, 81 S.Ct. at 1056, 6 L.Ed.2d at 255.

VI. Inadmissible Evidence.

Iowa Code section 17A.14(1) and Iowa Administrative Code rule 701— 7.17(2)(e)(l) (1999) govern the admissibility of evidence in contested case hearings before the Department. The administrative law judge may base the decision upon evidence that would ordinarily be deemed inadmissible under the rules of evidence, as long as the evidence is not immaterial or irrelevant. Id. Consequently, hearsay evidence is admissible and may constitute substantial evidence for the Department’s decision. Gaskey v. Iowa Dep’t of Transp., 537 N.W.2d 695, 698 (Iowa 1995); Johnson v. Iowa Employment Sec. Comm’n, 239 Iowa 816, 828-29, 32 N.W.2d 786, 792 (1948). Notwithstanding, evidence that is not provided to a requesting party during the discovery process is inadmissible, irrespective of its reliability. Iowa Admin. Code r. 701 — 7.17(2)(c)(l).

The Clarks contend the agency erroneously admitted two exhibits that were not provided pursuant to their discovery requests; The first exhibit was a written report by an investigator that detailed the investigation of the embezzlement scheme and compiled the Clarks’ expenditures. Although the Department identified the report prior to the hearing, it failed to include five pages of the report. Likewise, the Department failed to identify or provide the Clarks a copy of the exhibit summarizing the activity of the IPIC account. To the extent the Department failed to comply with the discovery rules, we find the noncompliance did not prejudice the Clarks. The investigator testified at the hearing, and the Clarks were able to cross-examine him regarding his conclusions and the preparation of the report. Moreover, another witness provided testimony concerning withdrawals from the IPIC account, and was subjected to examination by the Clarks. Thus, the agency’s decision was not based on inadmissible evidence.

VIL Conclusion.

We conclude married taxpayers cannot amend their tax returns to change their filing status in order to avoid joint liability. Furthermore, we conclude substantial evidence exists to support a finding by the Department of clear and convincing evidence the Clarks willfully filed false tax returns with the intent to evade tax. In addition, we reject the Clarks’ contention that the agency based its decision on inadmissible evidence. The district court properly denied the Clarks’ petition for judicial review.

AFFIRMED.

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

      . The Clarks contend amending the filing status was the only means for an innocent spouse to avoid joint liability in Iowa prior to the 1994 amendment to Iowa Code section 422.21. Because we find Kathleen was not an innocent spouse, we need not address this argument.


text:
    Wesley HUISMAN, Appellant, v. Karen L. MIEDEMA and Larry Lee Miedema, Appellees.
    No. 00-1896.
    Supreme Court of Iowa.
    May 8, 2002.

      Scott L. Bixenman of Murphy & Collins, P.L.C., Le Mars, for appellant.
    Randy L. Waagmeester of Waagmeester Law Office, P.L.C., Rock Rapids, for ap-pellees.
   TERNUS, Justice.

Appellant Wesley Huisman, the putative father of Mark Miedema, has brought this action against Mark’s mother and presumptive father, Karen Miedema and Larry Miedema, appellees, to establish that he is the biological father of Mark. The district court ruled that Huisman had waived his right to establish his paternity and this appeal followed. We agree with the district court and affirm.

I. Background Facts and Proceedings.

Karen Miedema and Larry Miedema have been married since 1981. During their marriage Karen gave birth to four children, including Mark, who was born in 1992. From his birth until approximately April 1999, when Karen and Larry separated, Mark resided with Karen and Larry. He has continued to reside with Karen since April 1999.

Wesley Huisman had a nine-year affair with Karen. This liaison began in 1990 and continued until March 1999. Even though both were married to others, their relationship was intimate. Karen admits she engaged in sexual intercourse with Wesley around the time Mark was conceived.

Although neither blood nor DNA testing has been done, none of the parties dispute the likelihood Wesley is Mark’s biological father. Wesley testified that Karen brought Mark to him within days after his birth and said, “This is your son.” Karen also told at least one other person that Wesley was Mark’s father.

Although Wesley and Karen sought to keep their relationship secret from their spouses both before and after Mark’s birth, Wesley told his wife that Mark might be his son when Mark was about one year old. When Mark was almost three years old, Larry confronted Karen with his suspicion that Mark was not his biological son and Karen admitted that it was possible Wesley was Mark’s father. Larry made the decision, however, not to investigate further and he parented Mark as his own child.

Karen and Wesley continued to meet clandestinely after Mark’s birth. They were concerned that their children’s lives not be disrupted by their affair and so had no immediate plans to divorce their spouses or tell Mark or their other children that Wesley was Mark’s father. Wesley testified:

[W]e both had young families at the time and we were in love, at least that’s what she told me and I told her, and as far as my relationship with Mark, he was very young so I didn’t need to — we didn’t need to have an explanation for him yet at those early years. Later on we decided that rather than me say I was his father, that I would be his friend, Wes.

The evidence shows that Wesley did, in fact, have a relationship with Mark — that of friend. When Mark was a baby, Karen would bring Mark with her when she met Wesley. Wesley gave Mark small presents, took him for rides on Wesley’s farm tractor, and showed him baby animals at Wesley’s farm. As Mark began to talk and the potential that he would expose their relationship to their spouses arose, Karen stopped bringing Mark to her encounters with Wesley. During this period, Karen would put Mark on the phone to talk to her “friend, Wes.” On occasion, when Karen was driving somewhere, Karen would arrange to meet Wesley along the road, and Wesley would see Mark then. Sometimes Wesley would leave presents and notes for Mark in Karen’s car. At Wesley’s request, Karen gave Wesley pictures of Mark.

Between July 1992 and March 1999, Wesley did not provide any support for Mark in the form of housing, clothes, food or medical care. Karen never asked for monetary support and Wesley never volunteered to make regular support payments. Wesley merely advised Karen that he “would be there for whatever needs there are.” At one point Wesley gave Karen $500 to buy a camcorder to take videos of Mark that could be shared with Wesley. Wesley contended that Karen used this money to pay for Mark’s kindergarten tuition because she did not know how she would explain the purchase of a camcorder to her husband. Karen, however, testified that she returned the $500 to Wesley. The parties also disagreed on whether Wesley had made other payments towards Mark’s preschool tuition. (We assume for purposes of this appeal, that the disputed payments were made.) During this period Wesley provided no physical care or supervision of Mark.

In March 1999, Karen ended her affair with Wesley and began a relationship with another man. Shortly thereafter, Karen moved out of her marital home, taking Mark and her daughter with her, and filed for divorce. For a few months thereafter, Wesley’s contacts with Mark increased. Karen allowed Mark to go with Wesley and Wesley’s son, Wade, on a fishing trip and to go on occasional plane rides with Wesley. On one occasion, Karen left Mark with Wesley while she conducted an insurance physical. Wesley and Mark worked on a go-cart together during this time and Wesley attended Mark’s baseball games. After Karen left the family home, Wesley began making $200 monthly support payments to her until October 1999, when she refused to accept them.

Although Karen, Wesley and their spouses knew that Wesley might be Mark’s biological father, prior to December 1999 no one took any steps to challenge Larry’s status as the established father, See generally Iowa Code § 252A.3(4) (1999) (providing that child born to a married woman is deemed to be the child of mother and her husband). Wesley claimed that he did not assert his parental rights because he thought that eventually he, Karen and Mark would be together as a family and because Karen told him he had no legal rights regarding Mark. Wesley admitted he undertook no independent inquiry into his rights by consulting with an attorney.

Wesley was finally prompted to see an attorney when Karen asked him in October 1999 to take a blood test to prove he was Mark’s biological father. (Karen wanted to use this information to thwart Larry’s attempt to obtain custody of Mark.) At about this same time, Karen denied Wesley any further contact with Mark and began to return presents Wesley purchased for Mark.

On December 27, 1999, Wesley filed a petition to overcome Larry’s paternity and to establish custody, visitation and support. Karen and Larry resisted, asserting that Wesley had waived his rights by failing to take any action to enforce them or to assume responsibility for Mark’s support, maintenance, and care. The parties agreed to try the issue of waiver prior to resolving paternity. After an evidentiary hearing, the district court ruled that Wesley had waived his rights, so the court dismissed his petition. Wesley filed this appeal.

II. Scope of Review.

Although the parties seem to think our review is for correction of errors of law, we disagree. The right that Wesley was found to have waived is a constitutional right, as our subsequent discussion shows. Therefore, our review is de novo. State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000) (“Because the defendant’s alleged forfeiture involves a loss of the constitutional right to confront his accusers, our review is de novo.”). See generally Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999) (holding that review of constitutional claims is de novo).

III. Issues on Appeal.

To put the issues on appeal in context, we begin with a statement of the general definition of waiver: “waiver is an intentional relinquishment of a known right.” Hallum, 606 N.W.2d at 354. Wesley contends that his conduct does not satisfy this definition for two reasons. First, he claims his right to contest the paternity of a presumed father and establish his own paternity was not “known” prior to our 1999 decision in Callender v. Skiles. Second, he asserts that whether he waived his rights should not depend on his success in establishing a parent-child type of relationship with Mark, but on his efforts to maintain contact with the child. We will address each argument separately.

IV.Was the Right Wesley is Claimed to Have Waived a Known Right ?

In order to address Wesley’s first argument, the nature of the right claimed to be waived must be identified. Two cases are pertinent to this inquiry: In re B.G.C., 496 N.W.2d 239 (1992), and Callender. We first discuss In re B.G.C.

In In re B.G.C., this court held that “[t]he interest of parents in their relationship with their children is a fundamental liberty interest protected by the Fourteenth Amendment.” 496 N.W.2d at 244. In that case, we examined whether the procedures provided under chapter 600A for the termination of an unmarried mother’s parental rights with respect to her child comported with due process. Id. We held that they did. Id. We also ruled in In re B.G.C. that the putative father had not abandoned the child so as to permit termination of his parental rights. Id. at 246.

Subsequently, this court considered a similar issue in Callender. In that case, a putative father sought to establish his paternity of a child born to a woman married to another man. 591 N.W.2d at 184. Relying in part on our decision in In re B.G.C., we recognized that the putative father had a protected liberty interest in his relationship with his biological child. Id. at 190-91. We held that under the Iowa Constitution this interest could not be infringed without first providing due process. Id. at 190. We concluded that the putative father was entitled to petition the court to overcome the presumptive father’s paternity and establish his own paternity, using the procedures set forth in chapter 600B. Id. at 192. We noted, however, that a parent could waive his right to challenge an established father’s paternity. Id.

Wesley claims that he cannot be held to have waived his right to challenge Larry’s paternity and establish his own because his due process rights were unknown prior to our decision in Callender. We think, however, that the right he was found to have waived is substantive in nature; it is the parent’s fundamental liberty interest in establishing a relationship with his or her child, recognized by this court in In re B.G.C. The Callender decision merely established a procedural mechanism for putative fathers to assert their parental rights.

Our analysis is consistent with this court’s brief discussion of waiver in Callen-der. In that case, we implied that waiver could occur if the parent had not demonstrated “a serious and timely expression of a meaningful desire to establish parenting responsibility.” Id. (emphasis added). We relied on a Texas case that required a parent to “acknowledge responsibility for child support or other care and maintenance, and make[ ] serious and continuous efforts to establish a relationship with the child.” Id. (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Clearly, our court was focusing on the father’s effort to exercise his parental rights, not his efforts to judicially enforce those rights. That is not to say that the timeliness of attempts to judicially enforce parental rights might not be relevant to whether the putative father has waived his liberty interest. But the primary focus in such cases should be on whether the parent has waived his substantive interest in having a relationship with his child, not on whether he has waived his procedural remedies.

Given the fact that this court recognized a natural father’s “fundamental liberty interest” in his relationship with his child in 1992 in our In re B.G.C. case, 496 N.W.2d at 244, Wesley’s protected interest with respect to his putative child was known or knowable shortly after Mark was born. (Mark was born in July 1992 and our decision in In re B.G.C. was issued in September 1992.) Thus, it is appropriate to examine Wesley’s conduct to determine whether he made “a serious and timely expression of a meaningful desire to establish parenting responsibility” for Mark, or whether he intentionally relinquished this responsibility. Callender, 591 N.W.2d at 192.

V. Did Wesley Waive his Liberty Interest in Having a Relationship With Mark?

Before we look at the facts of this case, we must define the nature of the efforts required by a putative father to avoid a waiver of his rights. Wesley argues that efforts by a parent to maintain consistent contact with his child are sufficient even though the association is not of a parenVchild nature. We disagree.

Certainly, the import of our brief discussion of waiver in Callender implied that the efforts made by a putative father to assert his rights must be parental in character. As noted earlier, we observed in Callender that a parent who did not make “a serious and timely expression of a meaningful desire to establish parenting responsibility” could lose his rights. Id. (emphasis added).

This focus is consistent with the nature of the liberty interest at stake here. The liberty interest at issue is not merely to know the child, to visit with the child, and to give the child gifts. The interest at stake is based on the “significance of the biological link.” Id. at 190 (emphasis added). It is “[t]he right of a parent to companionship, care, custody, and management of his or her children.” Id. (emphasis added).

To require anything less than efforts to establish a parental relationship would be inconsistent with our case law in other situations involving child custody. For example, in In re Guardianship of Knell, 537 N.W.2d 778 (Iowa 1995), this court affirmed an award of custody of a minor child to the child’s stepfather over the objection of the child’s biological father. 537 N.W.2d at 783. We held that the natural father was not entitled to custody of his daughter after the child’s mother died because the father had made a voluntary and conscious choice to permit the stepfather to raise the child as his own. Id. Because the father had taken “ ‘an extended holiday from the responsibilities of parenthood,’ ” we held that he could not take advantage of the statutory preference for parental custody. Id. at 782 (citation omitted).

Similar sentiments were expressed by the United States Supreme Court in Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). In that case the Court held a natural father’s constitutional rights were not violated when he was not given notice of his child’s adoption because he had “never had any significant custodial, personal, or financial relationship” with the child. Lehr, 463 U.S. at 262, 265, 103 S.Ct. at 2994-95, 77 L.Ed.2d at 627, 629. Holding that the federal constitutional protection of paternal rights depended on “a full commitment to the responsibilities of parenthood,” the Court determined that for the natural father to have qualified for such protection, he should have “‘come forward to participate in the rearing of his child.’ ” Id. at 261, 103 S.Ct. at 2993, 77 L.Ed.2d at 626 (citation omitted). The Court said,

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for his child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.

Id. at 262, 103 S.Ct. at 2993-94, 77 L.Ed.2d at 627.

Turning to the facts of the present case, we agree with the district court that Wesley did not make adequate efforts to assume parental responsibility for Mark. Although he established a friendship with Mark, he made no attempt to exercise responsibility for Mark’s care or custody. Not until Mark was seven years old did Wesley make regular child support payments; prior to that time, Wesley was satisfied to give Mark small gifts and trinkets. When asked at the hearing about the arrangement Wesley had with Karen to simply be Mark’s friend and not to reveal that he was Mark’s father, Wesley responded,

[EJventually he was going to be my son, but at the time he was very young and he lived at home with Larry and Karen and Larry was his father, so a little ... four, five, six-year-old boy doesn’t understand and so I was his friend, Wes.

(Emphasis added.)

For more than seven years, Wesley was content to let another man raise a child that was possibly his own. He did so, not through a lack of success at asserting his parental rights, but because it served his own need to keep his affair with Mark’s mother a secret. Wesley’s actions in 1999 in paying support and in commencing this action were too late. The district court correctly found that he had waived his liberty interest in a parental relationship with Mark. Accordingly, Wesley has no enforceable right to assert in the present action and the case was properly dismissed.

AFFIRMED.