author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Drew Everett YOUNG, Appellant.
    No. 03-0673.
    Supreme Court of Iowa.
    Sept. 1, 2004.
    James Martin Davis of Davis & Finley, Omaha, NE, and Dean A. Stowers of Rosenberg, Stowers & Morse, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell and Scott Brown, Assistant Attorneys General, and Marci L. Prier, County Attorney, for appellee.
   WIGGINS, Justice.

Drew Young fired shots at law enforcement officers in an attempt to commit “suicide by police.” The district court convicted him of attempted murder, assault with intent to inflict serious injury, and willful injury. He appealed the attempted murder conviction. He argued the district court convicted him on a lower standard than required by the Iowa Code. The court of appeals agreed and vacated the conviction. We granted the State’s application for further review. We hold the district court applied the appropriate standard under the statute. We, therefore, vacate the court of appeals decision and affirm the district court.

I. Facts and Prior Proceedings.

On the evening of April 4, 2002, apparently consumed with guilt over his addiction to child pornography, Young had begun drinking earlier in the evening. Soon after, he shot at law enforcement officers, hoping to draw their fire and thereby commit “suicide by police.” Deputy Sheriff Eugene Goos and police officer Gary Chambers, each driving separate law enforcement vehicles, responded to a dispatch call about an armed and suicidal man.

As Goos arrived at the scene, Young shot out Goos’s left driver’s window, the left side passenger window, and shot through the passenger side of the front windshield with his 223 caliber assault rifle. Young also shot out Chambers’ front passenger window. In the end, Young had fired twenty-four rounds — hitting five cars, several houses, and Goos. Goos received injuries to his left shoulder, head, and left thumb. Consequently, part of his thumb was amputated, and he has bullet fragments and glass shards embedded in his face and shoulders.

The State ultimately charged Young with two counts of attempted murder, one count of first-degree burglary, and one count of willful injury. Young waived his right to a jury trial. The district court, sitting without a jury, convicted Young of attempted murder, assault with intent to inflict serious injury as an included offense of attempted murder, and willful injury. The district court found Young not guilty of the crime of burglary. The district court sentenced Young to a term not to exceed twenty-five years for attempted murder, a term not to exceed ten years for willful injury, and a term not to exceed two years for assault with intent to inflict serious injury. The district court ordered Young to serve the three sentences concurrently.

Young appealed the attempted-murder conviction, arguing because the district court relied on the language of the uniform criminal jury instruction, it convicted him under a lower standard than that set forth in Iowa Code section 707.11 (2001). The court of appeals agreed and vacated his conviction, holding although the district court made an express finding and conclusion of Young’s intent to kill, it failed to make an express finding and conclusion that Young would achieve his intention. The court of appeals remanded the case to the district court for new findings of fact, conclusions of law, and judgment on the existing record consistent with its opinion. We granted the State’s application for further review.

II. Analysis.

Our review is for correction of errors at law. Iowa R.App. P. 6.4. According to Iowa Code section 707.11,

[a] person commits a class “B” felony when, with the intent to cause the death of another person and not under circumstances which would justify the person’s actions, the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person.
It is not a defense to an indictment for attempt to commit murder that the acts proved could not have caused the death of any person, provided that the actor intended to cause the death of some person by so acting....

(Emphasis added.) The district court appeared to rely on Iowa Uniform Criminal Jury Instruction No. 700.19 in defining the elements of attempted murder. This uniform instruction provides:

The State must prove all the following elements of attempt to commit murder:
1. On or about the_day of-,
20_, the defendant (set forth acts committed).
2. By [his] [her] acts, the defendant expected to set in motion a force or chain of events which could have caused or resulted in the death of (victim).
3. When the defendant acted, [he] [she] specifically intended to cause the death of (victim).

I Iowa Crim. Jury Instruction 700.19 (2003) (emphasis added). In borrowing from the wording of the uniform instruction, the district court determined in order for Young to be guilty of attempted murder, the State must establish:

1. That on or about April 5, 2002, the defendant fired gunshots at Eugene Goos;
2. By such acts the defendant expected to set in motion a force or chain of events which could have caused or resulted in the death of Eugene Goos; and
3. When the defendant acted, he specifically intended to cause the death of Eugene Goos.

(Emphasis added.) Regarding elements 2 and 3, the issues of Young’s expectations and specific intent, the district court expressly found and concluded:

The defendant, an expert marksman, fired multiple shots directly at the driver’s area of the sheriffs cruiser.... The shots struck Deputy Goos as he was seated in the driver’s seat operating his vehicle. Fortunately, Deputy Goos was not killed. Had defendant not intended to kill Deputy Goos he could have fired shots into the air, into the ground, or even into other parts of the vehicle. This court concludes that the defendant intended the natural results of his acts— those acts were the bursts of gunfire directly at Deputy Goos. The natural result of the acts would be the death of or serious injury to Deputy Goos. This evidence belies defendant’s statement as to his intent, and establishes beyond a reasonable doubt elements 2 and 3. Without accepting defendant’s position that he wanted the law enforcement officers to shoot him, the court notes that its findings as to the specific intent of the defendant are not inconsistent with his claimed motive. He may well have wanted to attract such attention as to cause a law enforcement agent to shoot him; attempting to kill or seriously injure an officer might well be expected to accomplish his intended mission. Being suicidal does not preclude one from forming a specific intent to kill or seriously injure.

Young claims because the statute contains the language, “the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person,” the district court’s use of the language, “which could have caused or resulted in the death of Eugene Goos,” in element 2 allowed the district court to convict him by relying on an incorrect element of the crime. He argues the past tense of “will” is “would” and therefore the trial court should have considered whether Young’s actions would have killed the deputy, not whether they could have. He contends that “will” connotes certainty, while “could” connotes speculation or uncertainty. Thus, he argues “could have caused” sets a lower standard than “will cause.”

When interpreting statutes, we look at the statute as a whole, rather than isolated words or phrases. See City of Nevada v. Slemmons, 244 Iowa 1068, 1071, 59 N.W.2d 793, 794 (1953) (stating “it is a cardinal principle of statutory construction that the [legislative] intent is to be gleaned from the whole statute ... and not from any particular part”). To be guilty of attempted murder the statute requires (1) a specific intent to cause the death of another and (2) an overt act in furtherance of the required specific intent. Iowa Code § 707.11.

The language of the statute, “the person does any act by which the person expects to set in motion a force or chain of events which will cause or result in the death of the other person,” defines the type of overt act that is in furtherance of the required specific intent to commit attempted murder. The second paragraph of section 707.11 supports this interpretation of the statute, as it indicates that “will cause” qualifies the type of overt act in furtherance of the required specific intent necessary to support a conviction for attempted murder. More importantly, this paragraph aids us in resolving the primary issue before us: whether the district court correctly applied the statute to Young’s conduct.

The second paragraph of section 707.11 makes clear that “will cause” refers to the actor’s expectation of the consequences of his or her act, not the probability of the act’s success. Other authorities hold that factual possibility is unnecessary to find an act was in furtherance of the required specific intent necessary to support a conviction for attempted murder. See People v. Vang, 87 Cal.App.4th 554, 563-64, 104 Cal.Rptr.2d 704 (2001) (holding defendant’s act of firing a loaded gun at a residence after the intended victim had moved constituted an act in furtherance of the required specific intent to commit attempted murder); People v. Ng, 156 Mich. App. 779, 402 N.W.2d 500, 504 (1986) (holding defendant’s act of mailing a defective bomb constituted an act in furtherance of the required specific intent to commit attempted murder); State v. Mitchell, 170 Mo. 633, 71 S.W. 175, 177 (1902) (holding defendant’s act of firing a loaded gun at empty bed constituted an act in furtherance of the required specific intent to commit attempted murder); State v. Damms, 9 Wis.2d 183, 100 N.W.2d 592, 594-96 (1960) (holding defendant’s act of firing an unloaded gun, which the defendant believed was loaded, constituted an act in furtherance of the required specific intent to commit attempted murder). Likewise, we hold that “will cause” in section 707.11 refers to the type of act that is in furtherance of the required specific intent to commit the crime of attempted murder, thus factual possibility or probability of success is utterly irrelevant to that analysis.

Accordingly, the district court properly considered whether Young carried out an act in furtherance of the required specific intent to commit the crime of attempted murder. The district court specifically concluded:

Had defendant not intended to kill Deputy Goos he could have fired shots into the air, into the ground, or even into other parts of the vehicle. This court concludes that the defendant intended the natural result of his act — those acts were the bursts of gunfire directed at Deputy Goos. The natural result of the acts would be the death of or serious injury to Deputy Goos.

(Emphasis added.) Thus, the district court properly addressed whether Young’s act of shooting his assault rifle at Goos’ vehicle was the type of act that would further the specific intent to commit attempted murder, rather than speculating about the factual probability that the act would accomplish the deed.

The uniform instruction quoted by the district court in its decision explained the defendant’s expectations of his act in terms of “which could have caused or resulted in the death of Eugene Goos,” rather than using “which would have caused or resulted in the death of Eugene Goos.” Defendant claims this was error. As we previously stated, factual possibility or probability that the action will be successful is irrelevant to the analysis; thus, “could” and “would” are interchangeable in determining Young’s expectations. To avoid this confusion in the future, the language of the uniform jury instruction should probably more closely follow the language used by the legislature in section 707.11.

III. Disposition.

Because we find the district court properly analyzed the evidence under the statute, finding Young had the specific intent to cause the death of Goos and committed an overt act in furtherance of the required specific intent, we vacate the court of appeals decision and reinstate the verdict of the district court.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

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

      . Contrary to Young's argument, the district court found his act "would,” rather than "could,” cause death. Hence, even under his argument we would affirm the district court.

      . As the Texas Court of Appeals noted, "[W]e observe that both can1 and 'will' may be used to denote ability, and that in common usage, these words and their past tense forms, 'could' and 'would,' are sometimes used interchangeably.” Shaver v. Brock, 800 S.W.2d 657, 659 n. 2 (Tex.Ct.App.1990) (citations omitted).

      .For example, the second element of the instruction could state:
      At the time the defendant (describe act), the defendant expects to set in motion a force or chain of events which will cause or result in the death of (name of victim).
      When applicable the district court should use a separate instruction to explain that, even if the defendant proves the defendant's act could not have caused the death of any person, this element is established if the defendant intended to cause the death of some person by so acting.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    Patrick WERNIMONT, Appellant, v. William Joe WERNIMONT, Appellee.
    No. 02-1284.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Charles A. Blades, Cedar Rapids, for appellant.
    Constance Alt and Theresa C. Davis of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.
   LAVORATO, Chief Justice.

In this personal injury action, Patrick Wernimont sued his father, William Wer-nimont, for injuries arising out of the use of a skid loader that William owned. Patrick alleged that as his employer, William owed him a duty to provide reasonably safe machinery and a reasonably safe place to work. Patrick also alleged William failed to warn him of the danger the skid loader presented under the circumstances in which it was used. The district court sustained William’s motion for summary judgment on the issues of employment and failure to warn. Patrick appealed and we transferred the case to the court of appeals, which affirmed. We granted further review and on that review we vacate the court of appeals decision and reverse the district court judgment on both issues. We remand the case for further proceedings consistent with this opinion.

I. Background Facts.

The incident giving rise to this lawsuit happened on William’s farm on December 28, 2000. Patrick suffered crushing injuries to his feet when the hydraulic lift arms of a skid loader suddenly fell and pinned his feet to the top of the skid loader where he was standing. William had purchased the skid loader in 1993 and owned it on the date of the incident.

Patrick had been a hired hand on his father’s farm for about eight years until August of 2000 — three months before the incident. During this employment, William paid Patrick $1000 per month. The employment was not full-time; rather Patrick helped his father when he needed Patrick to do regular chores and other work. In addition to this employment, Patrick had his own farm. After August of 2000, Patrick continued farming and worked for a tree service. Patrick and William had a history of exchanging work.

On the day of the incident, William was feeding cattle on his farm. Some of the cattle belonged to Patrick and some belonged to William. William was using the skid loader in question for this chore. The skid loader had a bale spear (used to move hay bales) attached to the front end. The bale spear had on it a round hay bale, weighing over 1200 pounds. As William was operating the skid loader through a gate to the cattle, he raised the boom to see that he was not going to hit the cattle. While driving through the gate, William hit a patch of snow, causing the skid loader to tip forward on its front two wheels. The hay bale was touching the ground, and the back two wheels of the skid loader were off the ground.

William switched off the skid loader and went into the house for Patrick’s help to right the skid loader. Although Patrick was ill with the flu, he felt well enough to help. While Patrick was dressing, William retrieved his tractor and log chain to pull the skid loader upright, but the skid loader was still “tippy.” William then told Patrick to stand on the back-end of the skid loader to counterbalance it. Suddenly, the boom dropped, pinning Patrick’s feet to the skid loader.

II.Proceedings.

As a result of this incident, Patrick sued several product defendants as well as William. The product defendants eventually settled, leaving William as the only defendant.

Pertinent to this appeal, Patrick alleged in a count he captioned “negligence against William Joe Wernimont” that William was negligent in failing to warn him of the dangers associated with the skid loader. In a count he captioned “employer liability against William Joe Wernimont,” Patrick alleged he was employed by William and for that reason William was liable to him pursuant to Iowa Rule of Civil Procedure 83 (now 1.416). Patrick further alleged that William, as his employer, was negligent in one or more of the following particulars:

(a) in failing to provide plaintiff with reasonably safe machinery;
(b) in failing to properly warn and instruct about the use of the machinery;
(c) in failing to provide a reasonably safe place to work;
(d) in operating or allowing the skid loader to be operated in an unsafe manner.

William filed a motion for summary judgment. Patrick resisted, contending there were genuine issues of material" fact concerning the issue of an employer-employee relationship and one or more legally recognizable duties. Patrick filed an affidavit in support of his resistance.

The district court sustained the motion for summary judgment, concluding Patrick had not presented any evidence supporting an employer-employee relationship and that Patrick was doing a favor for his father, not work for his employer. The court also concluded that Patrick had established no duty running from William to him and therefore all of his negligence allegations, including the failure to warn, must fail.

Patrick appealed and we transferred the case ⅜0 the court of appeals. The court of appeals affirmed the district court ruling, and thereafter we granted Patrick’s application for further review.

III. Issues.

Although Patrick raised numerous issues, he preserved only two for our review. Those issues concern the district court’s action in sustaining William’s motion for summary judgment as to the employer-employee relationship and the negligence theory based on a common-law duty to warn.

IV. Scope of Review.

We review a summary judgment ruling for correction of errors at law. Summary judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. We examine the record before the district court to determine whether any genuine issue of material fact exists and whether that court correctly applied the law. '

Hegeman v. Kelch, 666 N.W.2d 531, 533 (Iowa 2003) (citations omitted). In addition, we view the record in the light most favorable to the nonmoving party and al,low that party all reasonable inferences that can be drawn from the record. Delaney v. Int’l Union UAW Local No. 94, 675 N.W.2d 832, 834 (Iowa 2004).

V. Employer Liability.

As mentioned, Patrick alleged that he was employed by William on the date of the incident and for that reason William was liable to him pursuant to Iowa Rule of Civil Procedure 83, formerly rule 97, and now rule 1.416. This theory of liability becomes important from Patrick’s standpoint, because under this rule, employer liability is governed by the “pure” comparative negligence principles of rule 1.416, not Iowa Code chapter 668 (comparative fault). Ries v. Steffensmeier, 570 N.W.2d 111, 113 (Iowa 1997). Thus, under rule 1.416, “proof of an employee’s negligence, even if greater than fifty percent ‘does not bar recovery but merely mitigates damages.’ ” Id. (citation omitted).

Moreover, establishing the relationship is important from an injured employee’s standpoint because of the duty imposed by the relationship: employers must use reasonable care to provide and maintain for their employees reasonably suitable and safe machinery and tools with which to work, and a reasonably safe place to work. Erickson v. Erickson, 250 Iowa 491, 498, 94 N.W.2d 728, 732 (1959).

William contends the following elements cited in Gabrielson v. State, 342 N.W.2d 867, 870 (Iowa 1984), must be established to prove an employer-employee relationship:

“(1) the right of selection, or to employ at will; (2) responsibility for the payment of wages by the employer; (3) the right to discharge or terminate the relationship; (4) the right to control the work; and (5) is the party sought to be held as the employer the responsible authority in charge of the work or for whose benefit the work is performed.”

Gabrielson, 342 N.W.2d at 870 (citation omitted).

William asserts here that Patrick (1) was not receiving and had not received any wages from him for at least three months before the incident, (2) was self-employed at the time of the incident and worked for a tree service, and (3) had simply volunteered to help his father right the skid loader with no expectation of compensation for his assistance. In short, Patrick was simply a volunteer. In addition, William maintains that under Iowa law there is a presumption that worked performed between family members is gratuitous. For all these reasons, William concludes the principal elements for establishing an employment relationship were not present here; therefore, the district court was correct on this issue.

We have made clear that the five elements listed above are not controlling in every situation in which the issue is whether an employer-employee relationship exists. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 542 (Iowa 1997). Rather, the importance of the elements bearing on the existence of an employment situation varies. Id. (identifying primary elements for independent contractors, borrowed servants, and gratuitous employees). “[I]f the issue turns on whether the person is a ‘gratuitous employee,’ the most important element is the responsibility for payment of wages.” Id.; accord Usgaard v. Silver Crest Golf Club, 256 Iowa 453, 456-57, 127 N.W.2d 636, 638 (1964). However, the parties’ intent, even if not the primary factor, is always a consideration. Iowa Mut. Ins., 572 N.W.2d at 542; accord Usgaard, 256 Iowa at 456, 127 N.W.2d at 638.

Important here are the exchange-of-work cases involving farmers. In those situations, we have held that

[e]ven where there is no specific arrangement for pay, but there is an exchange of work between farmers and an agreement that under such conditions one farmer performs services for the other, ... the relationship of master and servant is present.

Erickson, 250 Iowa at 495, 94 N.W.2d at 730; accord Ganzhorn v. Reep, 234 Iowa 495, 499, 12 N.W.2d 154, 156 (1943). The agreement need not be express, but can be implied. Ganzhom, 234 Iowa at 499, 12 N.W.2d at 156. And the custom to perform services furnishes consideration for the implied agreement. Id.

Also important here is that ordinarily whether an employment relationship exists is a fact question. Heinz v. Heinz, 653 N.W.2d 334, 344 (Iowa 2002).

Patrick filed an affidavit describing the alleged employer-employee relationship as follows. From approximately 1982 through and including the time of the incident, Patrick worked on his father’s farm doing regular daily chores and other work his father needed done. Such other work included assisting William in operating William’s machinery, feeding livestock, clearing William’s fields, and other activities that typically take place on a farm during the fall and early winter seasons. William would tell Patrick what he needed to have done and how he wanted it done. Patrick would follow his instructions. During this time period, Patrick had his own farming operations, including livestock, custom combining, and raising corn and beans on property he leased. William allowed Patrick to (1) keep cattle and sheep on William’s farm, (2) store corn and beans on the farm, and (3) keep his trailer and some equipment on the farm. In addition, William plowed fields on land that Patrick leased. These services benefited Patrick financially in his own farming operations.

The affidavit also describes what allegedly happened on the date of the incident:

As of the time that I was injured on December 28, 2000, I was working for my father in generally the same fashion as I had been working for him for almost twenty years. I did not “quit working” for my father. (I misspoke when I said this in my deposition.) I was no longer receiving a wage from my father. But he continued to provide me with the services that are described above and in exchange I worked for him on his farm.
When my father came into the house after tipping the skid loader, I felt it was my duty to help him because of the work exchange agreement that is described above. As was usual and customary in our working relationship on his farm, he was in charge of what we were doing with respect to the skid loader and I was only doing what he was telling me to do. I considered myself his employee.

Viewing the affidavit most favorably to Patrick and allqwing him all reasonable inferences from it, we conclude for reasons that follow that it generates a genuine issue of material fact concerning the employment relationship at the time of the incident. From Patrick’s affidavit, a fact finder could reasonably find the following. First, there was an implied if not an express agreement for an exchange of work beginning in 1982 through and including the date of the incident. Second, that agreement continued even though William discontinued paying Patrick a wage in August of 2000. Third, Patrick answered his father’s call for help because of this work exchange agreement and not because of any gratuitous intention, thereby overcoming the presumption that the work was performed gratuitously because of the family relation. See Youngberg v. Holstrom, 252 Iowa 815, 822, 108 N.W.2d 498, 502 (1961). Fourth, in the effort to right the skid loader, William was in charge and control, and Patrick was acting at his direction. Last, Patrick considered himself an employee. Significantly, William did not controvert any of these inferences by way of affidavit or deposition.

Thus, contrary to the district court ruling, genuine issues of material fact exist on the question whether, on the date of the incident, William as an employer owed Patrick a duty to provide reasonably safe machinery and a reasonably safe place to work.

VI. Failure to Warn.

As mentioned, in a count captioned “negligence against William Joe Wernimont,” the petition alleged that William was negligent because of his failure to warn Patrick about the dangers associated with the skid loader. Patrick also complains about the district court’s rejection of this theory of liability.

The common-law duty to warn “is dependent upon superior knowledge and arises when one may reasonably foresee danger of injury or damage to one less knowledgeable unless forewarned of the danger.” Krueger v. Noel, 318 N.W.2d 220, 225 (Iowa 1982).

To avoid summary judgment on the issue of failure to warn, Patrick had to generate a genuine issue of material fact concerning William’s knowledge of the danger the skid loader presented when he directed Patrick to stand on its back-end to counterbalance it. Patrick also had to generate a genuine issue of material fact concerning his own unawareness of such danger. Again, viewing the record in the light most favorable to Patrick and allowing him all reasonable inferences from it, we think for reasons that follow that Patrick has generated such genuine issues of material fact.

William purchased the skid loader in 1993 and owned it at the time of the incident. The manual for the skid loader showed all the labels that were supposed to be on the machine. One of those labels stated: “NEVER STAND OR LEAN ANYWHERE ON LOADER OR LINKAGE WILL CRUSH YOU.” The manual also warned that only the operator was supposed to be on the machine and riders were to be kept off of it. In his deposition, William claimed the label was not on the machine but admitted he had read the owner’s manual. Patrick, on the other hand, testified in his deposition that he had neither seen the label nor read the owner’s manual.

In his deposition, Patrick said he thought the boom, which dropped and pinned his feet to the skid loader, was raised “way over half.” He therefore believed that William had engaged the boom lock pins. In his deposition, William said the boom was not raised high enough for him to use the boom lock pins, the pins were always used if the boom was high enough, and he knew the pins were a safety feature. William also said he did not tell Patrick that the boom lock pins were not engaged when Patrick came outside.

Viewing the testimony of father and son in the light most favorable to Patrick, the reasonable inference is that William had superior knowledge of the danger to Patrick that the skid loader presented when he directed Patrick to climb onto it. Moreover, Patrick was unaware of that danger. Therefore, contrary to the district court ruling, we conclude that a genuine issue of material fact exists on the allegation of the common-law duty to warn.

VII. Disposition.

Because we conclude Patrick has generated a genuine issue of material fact on the allegations of the employer-employee relationship and failure to warn, we vacate the court of appeals decision and reverse the district court judgment to the contrary. We remand the case for further proceedings consistent with this opinion.

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

All justices concur except LARSON and CARTER, JJ., who take no part.


author: CADY, Justice.

text:
    BILL GRUNDER’S SONS CONSTRUCTION, INC., Plaintiff, v. William R. GANZER and Linda S. Ganzer, Husband and Wife, and Community Bank, Defendants. Community Bank, Appellee, v. William R. Ganzer and Linda S. Ganzer, Husband and Wife, Defendants, Bill Grunder’s Sons Construction, Inc., Appellant.
    No. 03-1002.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      David L. Scieszinski, Wilton, for appellant.
    Richard R. Phillips, Muscatine, for ap-pellee.
   CADY, Justice.

This appeal provides an excellent opportunity to reiterate the importance of preservation of error for appeal. The appellant, having filed no resistance with the district court to the appellee’s motion for summary judgment, and having filed no motion after entry of summary judgment, now asks us to reverse the district court’s decision based on grounds first raised in the appellant’s brief to this court. We choose instead to adhere to well-established rules of procedure and notions of fairness and judicial economy. For the reasons that follow, we affirm the district court’s grant of summary judgment.

I. Background Facts and Proceedings.

This case stems from activities related to real estate owned by William R. and Linda S. Ganzer described as Lot 16 of Emerald Valley Subdivision in Fruitland, Iowa. On May 22, 1996, the Ganzers executed a deed of trust on Lot 16 in favor of Community Bank of Muscatine as security for a $16,500 loan. The deed of trust was recorded on May 30,1996.

On July 7, 2000, the Ganzers entered into a contract with Bill Grunder’s Sons, Inc. (Grander) to pour a foundation for a house on Lot 16. Grander furnished labor and materials on the project valued at $8,423.50. The Ganzers, however, never made payment. On April 20, 2001, Grander perfected a mechanic’s lien on Lot 16. See Iowa Code § 572.2 (2003) (“Every person who shall furnish any material or labor for, or perform any labor upon, any building or land for improvement ... shall have a lien upon such building or improvement, and land belonging to the owner on which the same is situated ... to secure payment for the materials or labor furnished or labor performed.”).

On May 17, 2002, Grander filed a petition to foreclose on the mechanic’s hen, naming the Ganzers and Community Bank as defendants. Because the Ganzers had also defaulted on their payments to the Bank, the Bank filed an answer and cross-petition also seeking to foreclose on Lot 16.

The Bank filed a motion for summary judgment on March 13, 2003, claiming that any interest Grander had in Lot 16 was junior and inferior to the Bank’s deed of trust. Grander filed no resistance to the Bank’s motion, and did not file a statement of material facts or memorandum of authorities. See Iowa R. Civ. P. 1.981(3) (“Any party resisting the motion shall file a resistance within 15 days, unless otherwise ordered by the court, from the time when a copy of the motion has been served. The resistance shall include a statement of disputed facts, if any, and a memorandum of authorities supporting the resistance.”). Accordingly, on April 3, 2003, the district court granted the Bank’s motion and entered a decree of foreclosure in the Bank’s favor, declaring the deed of trust “to be superior and paramount to the interests, claims or liens of’ Grander.

. On April 17, 2003, the Ganzers filed for bankruptcy in the United States Bankruptcy Court for the Southern District of Iowa. This resulted in an automatic stay of proceedings against the Ganzers. See 11 U.S.C. § 362(a) (2000). The Bank subsequently filed a motion with the bankruptcy court for relief from the stay. The court granted the motion and lifted the stay.

Grander appeals the district court’s grant of summary judgment. It claims the Bank’s deed of trust on Lot 16 was defective and that the Bank was therefore not entitled to judgment as a matter of law.

II. Standard of Review.

We recently set forth the standard of review of a district court’s entry of summary judgment:

“In reviewing the grant of summary judgment ... the question is whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. An issue of fact is ‘material’ only when the dispute is over facts that might affect the outcome of the suit, given the applicable governing law. The requirement of a ‘genuine’ issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. We examine the record in a light most favorable to the party opposing ⅛6 motion for summary judgment to determine if movant met his or her burden.”

Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004) (quoting Junkins v. Branstad, 421 N.W.2d 130, 132-33 (Iowa 1988)); accord Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004); Hynes v. Clay County Fair Ass’n, 672 N.W.2d 764, 766 (Iowa 2003).

III. Preservation of Error.

Grander asserts that the deed of trust contained a defective future advances or “dragnet” clause. A dragnet clause in a mortgage states that the “mortgage secures all the debts that the mortgagor may at any time owe to the mortgagee.” Blacks Law Dictionary 1036 (8th ed. 2004). “Dragnet clauses are valid but not favored by the law. They are thus strictly construed against the mortgagee.” Deco-rah State Bank v. Zidlicky, 426 N.W.2d 388, 390 (Iowa 1988) (citing Farmers Trust Sav. Bank v. Manning, 311 N.W.2d 285, 289 (Iowa 1981)). Nevertheless, “they have a proper and legitimate place in commerce” and “will be enforced to the extent it appears to have been within the intent of the parties.” Freese Leasing, Inc. v. Union Trust Sav. Bank, 253 N.W.2d 921, 925 (Iowa 1977) (quoting Brose v. Intl. Milling Co., 256 Iowa 875, 879, 129 N.W.2d 672, 675 (1964)).

Grander points to Iowa Code section 654.12A, claiming that it renders the deed of trust junior to its mechanics lien. Section 654.12A provides, in pertinent part:

[I]f a prior recorded mortgage contains the notice prescribed by this section and identifies the maximum credit available to the borrower, then loans and advances made under the mortgage, up to the maximum amount of credit together with interest thereon, are senior to indebtedness to other creditors under subsequently recorded mortgages and other subsequently recorded or filed liens even though the holder of the- prior recorded mortgage has actual notice of indebtedness under a subsequently recorded mortgage or other subsequently recorded or filed lien.... The notice prescribed by this section for the prior recorded mortgage is as follows:
NOTICE: This mortgage secures credit in the amount of . Loans and advances up to this amount, together with interest, are senior to indebtedness to other creditors under subsequently recorded or filed mortgages and liens.

Iowa Code § 654.12A (2003). Grunder argues that because the Bank’s deed of trust contained a dragnet clause and did not contain the statutory notice, the Bank’s security interest in Lot 16 cannot be senior to Grunder’s mechanic’s lien. However, even assuming this argument has merit, Grunder raised it for the first time in this appeal. It was not made to the district court, and the district court had no opportunity to pass upon it.

We will not review issues on appeal unless they were properly preserved below. Weltzin v. Nail, 618 N.W.2d 293, 296 (Iowa 2000) (citing In re Marriage of Hitchcock, 265 N.W.2d 599, 606 (Iowa 1978)). As we have repeatedly explained,

[B]ased upon considerations of fairness, ... this court is not ordinarily a clearinghouse for claims which were not raised in the district court[.] “[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.”

Sorci v. Iowa Dist. CL, 671 N.W.2d 482, 489 (Iowa 2003) (quoting DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)); accord . Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa 2003) (“ ‘It is a fundamental doctrine of appellate procedure that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.’ ” (citation and emphasis omitted)); Strand v. Rasmussen, 648 N.W.2d 95, 100 (Iowa 2002); Meier'v. Sen-ecaut, 641 N.W.2d 532, 537 (Iowa 2002); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); see also Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 288 (Iowa 2000) (“ ‘Issues not raised before the district court ... cannot be raised for the first time on appeal.’ ” (quoting State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997))); Vincent v. Four M Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999) (“Wé will not address an argument which the district court did not have an opportunity to consider.” (citing Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996))).'

Grunder is correct that the Bank, as the party moving for summary judgment, had the burden to show the district court that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The moving party in a summary judgment proceeding is obligated to establish a right to recover on its claim. Id. Moreover, while our rules of summary judgment direct the nonmoving party to contest the entry of judgment and point out deficiencies in the claim, the failure to do so does not necessarily relieve the movant of its obligation. However, if the movant has failed to establish its claim and the court neverthéless enters judgment, the nonmovant must at least preserve error by filing a motion following entry of judgment, allowing the district court to consider the claim of deficiency.

In this case, not only did Grander fail to file a resistance to the Bank’s motion, it also remained silent when the district court allegedly erroneously entered judgment in favor of the Bank. If Grander believed the Bank failed to show entitlement to judgment as a matter of law by failing to show the deed of trust was free from defects, it was obligated to alert the trial court by filing a motion following entry of judgment. Id. R. 1.904(2); Meier, 641 N.W.2d at 537-39. Because Grander filed no such motion, the issue is not preserved for appeal.

IV. Conclusion.

Because Grander failed to preserve any issue for appeal, “there is nothing before us to review.” Wilson, 666 N.W.2d at 167. We therefore affirm the decision of the district court.

AFFIRMED.

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

      . On June 17, 2003 — seventy-five days after the district court entered judgment in favor of the Bank — Grander filed a Notice of Appeal. The Bank argues that the appeal is untimely because it was filed more than thirty days after the entry of judgment. See Iowa R.App. P. 6.5(1) (stating that appeals to the supreme court must generally be filed within thirty days of judgment). Grander responds that it had an additional thirty days after it received notice of the lifting of the stay on June 2, 2003 to file its appeal and that its filing on June 17 was therefore timely. See 11 U.S.C. § 108(c)(2) (2000) (extending the time "for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against” a co-debtor until "30 days after notice of the termination or expiration of the stay”).
      The Bank asserts the stay only applies to actions against the debtors (the Ganzers) and does not apply to toll Grunder's time to file notice of appeal of the judgment in the Bank's favor. See C.H. Robinson Co. v. Paris & Sons, Inc., 180 F.Supp.2d 1002, 1009 (N.D.Iowa 2001) ("As a general proposition, this automatic stay provision of the Bankruptcy Code applies only to bar actions against the debtor and does not extend to solvent codefendants.” (citations omitted)). We need not decide whether the stay effectively tolled Grunder’s time to file a notice of appeal, because even assuming arguendo that the appeal was untimely, the record shows that Grander failed to preserve error with the district court's entry of summary judgment.

      . The deed of trust contained a provision stating that its purpose was
      [t]o secure payment to the Bank, its successors or assigns, of all notes, obligations and liabilities of Borrower to the Bank, and on which note or notes, obligations and liabilities Borrower, either jointly or severally, is a maker, endorser, surety or guarantor. The intention of Borrower hereby is to cover and secure payment to the Bank of any indebtedness now or hereafter owing by Borrower and also to secure payment of any extensions or renewals of any such indebtedness or any part thereof.


author: TERNUS, Justice.

text:
    In the Matter of the ESTATE OF Leonard WARRINGTON, Deceased. Gary D. Hyland, Conservator of Leona Warrington, Appellant, v. Kim S. Sheldon and Cindy L. Sheldon Alder, Appellees.
    No. 02-1727.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Roger L. Sutton of Sutton Law Office, Charles City, for appellant.
    Keith A. McKinley of McKinley, Folk-ers, Walk <& Murphy, P.L.C., Osage, for appellees.
   TERNUS, Justice.

This case involves a dispute over a life tenant’s right to invade the corpus of the real property subject to the life estate. Although the appellees, heirs of the re-mainderpersons, did not dispute that Leonard Warrington’s will gave the life tenant, his wife Leona, a power of invasion in addition to a life estate, they contended Leona had waived this right. The district court agreed, concluding Leona, who served as executor of her husband’s estate, had waived this power by not expressly mentioning it in her application for approval of the final report. Based on this determination, the district court refused the request of Leona’s conservator, the appellant, Gary Hyland, to sell the remainder interest to pay for Leona’s care. Upon our review of the court’s decision and the arguments of the parties, we reverse the decision of the district court and remand with directions.

I. Background Facts and Proceedings.

The facts are largely undisputed. Leonard Warrington died testate on December 4, 1972. His wife, Leona Warrington, was appointed executor of his estate. Under Leonard’s will, Leona was bequeathed Leonard’s personal property and a life estate in Leonard’s real property together with the power to use the principal “as shall be necessary to maintain [Leona] in her usual station of life, and to bury her,” subject to court approval “of the necessity and wisdom of such [expenditure].” The residue of Leonard’s estate was bequeathed to his sisters, Mildred Warring-ton and Delene Sheldon.

At the time of his death, Leonard held an undivided one-half interest in a 140-aere farm; Leona held the other undivided one-half interest. In the executor’s final report, Leona asked that the clerk of court be directed to change title to Leonard’s interest in the real estate in question “into the names of Mildred Warrington and De-lene Sheldon subject to the life use of Leona Warrington.” The probate court approved the final report and in its order directed the change in title requested by Leona. Thereafter, the remainderpersons elected to defer payment of inheritance tax on the farm ground until the termination of Leona’s interest in the property.

For nearly three decades thereafter, Leona rented the property in which she held a life estate to one Steve Jensen, retaining the rental income. In 1992 twenty-two acres of the parcel were sold to the county for a right-of-way. One-half of the proceeds of this transaction was placed in a certificate of deposit with the interest income to be paid to Leona and the principal, upon the death of Leona, to be divided equally between Mildred and Delene. In 1993 and 1994 Leona contacted her sisters-in-law to ask if they would agree to sell the farm to Jensen. Although they refused to do so, Leona nonetheless sold her one-half undivided interest to him. Thereafter, both remainderpersons passed away and their interest in the land passed to their heirs, Kim Sheldon and Cindy Aider, to whom we will hereafter refer as the re-mainderpersons.

In June 1999 Leona moved to a nursing home, where she has resided ever since. On August 9, 2000, the appellant, Gary Hyland, was appointed conservator for Leona, who was then eighty-five years of age.

By May 2002 Leona was rapidly running out of funds to pay for the nursing home. Consequently, her conservator filed a petition to reopen Leonard’s estate and obtain permission to sell the real estate in question so the proceeds could be used for Leona’s care. The remainderper-sons, appellees in this appeal, resisted the conservator’s petition, raising the affirmative defenses of statutory bar, waiver, and estoppel by acquiescence. Various documents were attached to the petition and the resistance -chronicling the factual background of the present dispute.

After a telephonic hearing, the district court ruled that Leona had waived her right to use the principal because she did not reserve this power in her final report requesting a change of title in the real estate. The court therefore denied her conservator’s petition to reopen the estate and sell the remainder interest. After the conservator’s motion for reconsideration was overruled, this appeal was filed.

The conservator argues on appeal that this court should find on its de novo review that Leona did not waive her power of invasion. The remainderpersons contend the district court did not abuse its discretion in refusing to reopen the estate for three reasons: (1) the' court correctly determined Leona waived her right to consume the principal; (2) Leona’s claim is barred by the provisions of Iowa Code sections 633.487 and 633.489 (2001); and (3) Leona is precluded from asserting her claim by the doctrine of estoppel by acquiescence. Before we address these issues, we set forth the applicable standard of review.

II. Standard of Review.

Although the district court expressly denied the conservator’s petition to reopen the estate, it did so on the basis there was no merit in the conservator’s underlying request to use the remainder interest in the property for Leona’s care. In essence, the court skipped a preliminary determination of whether the substantive claim asserted by the conservator (Leona’s request to invade the principal) warranted reopening the estate so that claim could be litigated. Cf In re Estate of Witzke, 359 N.W.2d 183, 185 (Iowa 1984) (affirming district court’s refusal to reopen estate without addressing merits of underlying fraud claim petitioner sought to assert against administrator of estate). Instead, the court went straight to a determination of the merits of that claim. Consequently, even though a decision to reopen an estate is generally reviewed for an abuse of discretion, see id., we will review the trial court’s ruling on the waiver issue de novo because that ruling was actually a decision on the merits of the claim the conservator sought to pursue in the reopened estate. See Iowa Code § 633.33 (matters not specifically listed in statute but triable in probate are tried in equity); In re Estate of Gearhart, 584 N.W.2d 327, 329 (Iowa 1998) (probate matters tried in equity are reviewed de novo). Under a de novo standard of review, we are not bound by the trial court’s conclusions of law or findings of fact, although we do give weight to factual findings, particularly when they involve the credibility of witnesses. In re Estate of Gearhart, 584 N.W.2d at 329.

Ordinarily, a decision whether to reopen an estate would precede a decision on the merits of the underlying claim, and that same progression would be followed on appeal. We will first address the merits of the conservator’s request to sell the remainder interest, however, as the district court relied on a perceived lack of merit in the underlying claim to justify its decision not to reopen the estate. After we determine the correctness of the district court’s ruling on the merits, we will then examine whether that ruling provided a sound basis for the district court’s refusal to reopen the estate.

III. Waiver.

“ ‘[WJaiver is an intentional relinquishment of a known right.’ ” Huisman v. Miedema, 644 N.W.2d 321, 324 (Iowa 2002) (citation omitted). The party asserting waiver, here the remainderpersons, bears the burden of proof. See Grandon v. Ellingson, 259 Iowa 514, 521, 144 N.W.2d 898, 903 (1966).

“The essential elements of a waiver are the existence of a right, knowledge, actual or constructive, and an intention to relinquish such right.” Waiver can be express, “shown by the affirmative acts of a party,” or implied, “inferred from conduct that supports the conclusion waiver was intended.”

Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Federated Mut. Ins. Co., 596 N.W.2d 546, 552 (Iowa 1999) (citations omitted).

In the present case there is no dispute that under Leonard’s will Leona had the right to invade the principal of the property should it become necessary for her support, provided she first obtained court approval. Moreover, due to Leona’s position as executor of her husband’s estate, she certainly had constructive knowledge that the will provided this power to her. The only disputed issue is whether Leona had an intention to relinquish this power. The remainderpersons do not argue she expressly waived this right or that she stated an intention to do so. Thus, the fighting issue is whether such an intention can be inferred from Leona’s conduct and the surrounding circumstances.

The trial court concluded and the re-mainderpersons argue on appeal that Leona’s failure to reserve her right to seek court authorization to invade the principal when she requested a change of title to the property in her final report as executor operated as a waiver of that right. In this regard, the parties expend considerable effort in their briefs debating whether Leona, acting as the executor, was required by the probate code to explicitly state this limitation on the remainder interest in her final report. The remainder-persons argue persuasively that identification in the final report of any legacy or devise that remains a charge against real estate is critical to ensure the reliability of record title. Even if these assertions are true, neither the propriety of Leona’s actions as executor nor the effect of these actions on the accuracy of record title is an issue in this case. We are not concerned with whether Leona would be equitably estopped from asserting her interest against a good-faith purchaser of the remainder interest. The issue in this case has an entirely different focus: Leona’s intent to abandon her right to invade the principal.

When we examine the evidence with respect to Leona’s intent, we conclude the remainderpersons have not carried their burden of proof. Even if we assume that Leona was obligated as executor to include her right to invade the principal as a limitation on title, her failure to do so could just as well have been due to inadvertence or mistake rather than to a conscious decision to give up this right. Importantly, the remainderpersons have suggested no reason that Leona would choose to abandon her power to invade the principal. Moreover, the conservator asserts the decision of the original remainderpersons, made after the estate was closed, to defer inheritance tax until the termination of Leona’s interest indicates their continuing awareness that Leona might consume the entire property.

The remainderpersons also rely on the fact that Leona did not assert her right of invasion in subsequent transactions relating to the real estate, particularly in 1992 when the proceeds of the sale made to the county were deposited in a bank account that did not contain a reference to Leona’s right to consume the corpus. The most that can be said with respect to Leona’s handling of the funds from the 1992 sale is that she waived her right to assert her power of invasion as to those funds. That conduct does not necessarily indicate an intention to waive her rights with respect to the remaining real estate at issue here.

Based on the contrary, yet equally plausible, inferences that can legitimately be drawn from Leona’s actions, we conclude the remainderpersons have not carried their burden to prove waiver. See generally Greenberg v. Alter Co., 255 Iowa 899, 905, 124 N.W.2d 438, 442 (1963) (holding where evidence is in equipoise, party has not carried burden of proof by preponderance of evidence); Christensen v. Iowa State Highway Comm’n, 252 Iowa 1351, 1353, 110 N.W.2d 573, 574-75 (1961) (stating to sustain burden to prove claim by preponderance of evidence, evidence to support claim “must produce the stronger impression and be more convincing when weighed against [opposing] evidence”). Having rejected the basis for the district court’s decision, we turn to the remainder-persons’ alternative defenses.

IV. Statutory Bar of Probate Code.

Iowa Code' section 633.487 precludes persons having notice or waiving notice of the final report from contesting “the correctness or the legality of the inventory, the accounting, distribution, or other acts of the personal representative” after approval of the final order and discharge of the personal representative. In addition, Iowa Code section 633.489, which provides for the reopening of an estate under certain conditions, states that “a claim which is already barred can, in no event, be asserted in the reopened administration.” The remainderpersons argue that Leona, who waived notice of the final report, is precluded by section 633.487 from contesting the distribution of the estate and therefore, pursuant to the quoted language from section 633.489, this claim cannot be asserted in the reopened estate.

Even if we- assume the claim asserted by the conservator falls within the scope of section 633.487, we think there is no merit to the remainderpersons’ argument. This court has held that “section 633.489 is intended as an exception to section 633.487. An interested person, whether or not he or she received notice or waived notice of the hearing on final report, can petition the court to reopen the estate.” In re Estate of Lynch, 491 N.W.2d 157, 160 (Iowa 1992). In other words, the claims excepted from section 633.489are those claims barred for some reason other than the provisions of section 633.487. Therefore, the bar of section 633.487 does not prevent a person otherwise meeting the requirements of section 633.489from reopening an estate. Before we consider whether the conservator otherwise met the requirements of section 633.489for reopening the estate, we address the remainderpersons’ contention that the district court’s judgment can be upheld under the estoppel-by-acquiescence doctrine.

V. Estoppel by Acquiescence.

The theory of estoppel by acquiescence “applies where a party, knowing of an enforceable right, neglects enforcement for such a length of time that the law implies its waiver or abandonment.” Rubes v. Mega Life & Health Ins. Co., 642 N.W.2d 263, 272 (Iowa 2002). Like waiver, this doctrine focuses on the action of the individual who holds the right to determine whether it has been waived. See Westfield Ins. Cos. v. Economy Fire & Cas. Co., 623 N.W.2d 871, 880 (Iowa 2001).

To prove estoppel, the remainder-persons rely on the fact that Leona did not assert her right of invasion during the probate of her husband’s estate or in subsequent transactions relating to the real estate. In particular, they point to her failure to seek court approval for sale of the twenty-two acres to the county in 1992. They claim it is now too late, nearly thirty years later, to enforce her right.

The weakness in the remainderpersons’ position is the fact that Leona had no need to invade the corpus of the property and therefore had no occasion to enforce her right prior to 2002 when her other assets were almost exhausted. The 1992 sale of a portion of the realty did not present such an occasion because that sale was not made to facilitate Leona’s use of the principal so court approval was not mandated. We conclude that Leona’s efforts to enforce her right to dispose of the principal for her care and maintenance were timely. No doubt any attempt by Leona to exercise her right to invade the corpus prior to exhaustion of her other assets would have met stiff resistance from the remainder-persons. Under these circumstances, we will not imply a waiver or abandonment of her right to use the principal from her failure to enforce this right earlier.

VI. Reopening of Estate.

We now turn to the district court’s refusal to reopen Leonard’s estate. Iowa Code section 633.489 allows the reopening of an estate “if other property be discovered, if any necessary act remains unperformed, or for any other proper cause appearing to the court.” The conservator relies upon the “proper cause” ground to reopen the estate in this case. The correction of mistakes made by an executor may constitute proper cause to reopen an estate. See In re Estate of Lynch, 491 N.W.2d at 161.

We review a court’s refusal to reopen an estate under the proper-cause alternative for an abuse of discretion. In re Estate of Witzke, 359 N.W.2d at 185. An abuse of discretion exists where the district court has exercised its discretion “on grounds clearly untenable, or to an extent clearly unreasonable.” In re Estate of Lynch, 491 N.W.2d at 161.

As noted earlier, the district court based its refusal to reopen the estate on Leona’s waiver of her power of invasion. Based on our rejection of the waiver defense asserted by the remainderpersons, we conclude the basis for the district court’s exercise of discretion was clearly untenable. The only other reasons offered by the remainder-persons to support the district court’s decision are the statutory bar and estoppel-by-acquiescence arguments we have found lacking in merit.

In examining the record, we find no basis to uphold the district court’s decision, as other facts support granting the conservator’s petition to reopen the estate. Assertion of Leona’s right of invasion will not deprive the remainderpersons of any testamentary devise to which they were unconditionally entitled under the provisions of Leonard’s will. Cf id. (reversing district court decision denying permission to reopen estate to recalculate fees based on corrected inventory, noting recalculation of fees would not deprive executor and its attorney “of any fees rightfully owed to [them]”). In addition, there are no practical difficulties connected with reopening the estate, selling the farm, and applying the proceeds to Leona’s expenses. Cf In re Estate of Witzke, 359 N.W.2d at 185 (affirming district court’s refusal to reopen estate due to practical difficulties in obtaining funds to pay petitioners, if they proved their claim, since estate assets had already been distributed). In view of these circumstances, we conclude the district court abused its discretion when it denied the conservator’s petition to reopen the estate. Cf. In re Estate of Lynch, 491 N.W.2d at 161 (finding abuse of discretion where trial court refused to reopen estate to correct mistake made by executor in including marital trust property in probate inventory).

VII. Summary and Disposition.

The district court abused its discretion in refusing to reopen the estate. The affirmative defenses asserted by the remain-derpersons have no merit. Therefore, we reverse the district court judgment and remand this case for entry of an order reopening the estate, directing the sale of the real estate with the proceeds to be used “to maintain [Leona] in her usual station of life, and to bury her,” subject only to the court’s determination of the “necessity and wisdom” of such expenditures, and for such other orders and relief not inconsistent with this opinion.

REVERSED AND REMANDED.

      . Although no evidentiary hearing was held, the remainderpersons do not ask that we remand this matter for the taking of evidence. They believe the pertinent facts are undisputed and the case can be resolved on the basis of the admitted allegations of the parties and the documentary evidence attached to the pleadings. Therefore, we, like the district court, rest our disposition of this matter on the admitted facts, the historical documents made a part of the record, and the parties’ written arguments.

      . We express no opinion as to whether Leona waived her right to use the proceeds of the 1992 sale for her care should the need arise.

      . Our decision should not be construed to stand for the proposition that the only way in which Leona could enforce her power of invasion was by first reopening the estate. See Thiele v. Whittenbaugh, 291 N.W.2d 324 (Iowa 1980) (partition action brought by re-mainderpersons under testator’s will against life tenant); McCarthy v. McCarthy, 178 N.W.2d 308 (Iowa 1970) (equity action by remainderpersons against mortgaging life tenant to construe will). Neither party questioned the route chosen by the conservator to enforce Leona’s right of invasion, and therefore we do not question it either.


author: PER CURIAM.

text:
    NEXT GENERATION REALTY, INC., an Iowa Corporation, and Homebuy-ers Consultants, an Iowa Corporation, Appellants, v. IOWA REALTY COMPANY, INC., an Iowa Corporation d/b/a Iowa Realty, First Realty, Ltd., an Iowa Corporation d/b/a First Realty, MidAmerican Energy Holdings Company, an Iowa Corporation, and Des Moines Area Association of Realtors, an Iowa Non-profit Corporation, Appellees.
    No. 03-0470.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Glenn L. Norris and George F. Davison, Jr. of Hawkins & Norris, P.C.; Christopher T. Cook of Wandro, Lyons & Baer, P.C.; and Dennis C. Schemmel of Schem-mel Law Offices, P.C., Des Moines, for appellants.
    John D. French and Amy M. Gernon of Faegre & Benson L.L.P., Minneapolis, MN; Mark McCormick of Belin Lamson McCormick Zumbach & Flynn, A P.C., Des Moines; and Kimberly J. Walker and Chad R. Anderson of Faegre & Benson L.L.P., Des Moines, for appellees Iowa Realty Company, Inc., First Realty, Ltd., and MidAmerican Energy Holdings Company.
    F. Richard Lyford and Joan M. Fletcher of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellee Des Moines Area Association of Realtors.
   PER CURIAM.

This antitrust suit was dismissed on summary judgment, and the plaintiffs have appealed, vigorously contending there are material facts very much in dispute. There is some attraction to this contention because the parties certainly disagree on matters relating to the disputed issues. The dismissal was nevertheless correct because a controlling legal principle in the field of antitrust law renders the disputed issues irrelevant. So we affirm.

Defendants, Iowa Realty Company, Inc. and First Realty (Iowa Realty defendants), are real estate brokerage firms that do business in the Des Moines area. Iowa Realty purchased First Realty in 1995. Now both firms are wholly owned by Home Services of America, Inc., which is wholly owned by MidAmerican Energy Holding Company. Customarily, Des Moines realtors charge a 7% commission for selling previously owned homes: half going to the seller’s agent, half to the buyer’s.

The Iowa Realty defendants are members of defendant Des Moines Area Association of Realtors (DMAAR). DMAAR is a professional association of real estate agencies that offers members the Multiple Listing Service (MLS). This service provides a vehicle for listing and selling residential real estate.

Plaintiff, Next Generation Realty, Inc. (Next Generation), is a real estate broker in the Des Moines area. Although Next Generation was a DMAAR member through 2001, it seldom used the MLS for its clients’ listings; Next Generation used the MLS for only 2% of its sales. Instead, Next Generation relied on “office exclusive” listings, which are not accessible to other MLS participants. This was part of Next Generation’s business strategy, and it advertised that not using the MLS saved its customers money. Plaintiff Homebuyer’s Consultants, which operated only during 1998, offered services to buyers on a negotiated-fee basis. Because it did not represent sellers, it did not contribute a single listing on the MLS.

DMAAR requires that members report office exclusive listings within forty-eight hours of posting. This way all members can obtain accurate information concerning the status of properties, even though other brokers cannot sell office-exclusive listings. In March 2000 DMAAR set its fee for exclusive listings at $35, which covered DMAAR’s expenses. Next Generation protested, claiming the fee was highly prejudicial because it dealt almost entirely with exclusive listings.

Next Generation did not report its office-exclusive listings to DMAAR, resulting in delinquent fees totaling $20,160. On September 11, 2001, the DMAAR board voted to suspend Next Generation’s MLS privileges until its past-due fees (which by then totaled $36,120) were paid in full. Next Generation did not pay the fees and was expelled.

On October 30, 2001, DMAAR elected its officers and directors for 2002. Iowa Realty agents received enough votes to form a majority of the board, but those elected did not assume their positions until 2002.

Plaintiffs’ claims are grounded in two Iowa statutes. Under Iowa Code section 553.4 (2003), they claim Iowa Realty defendants conspired to take control of DMAAR through an unorthodox election and conspired to expel plaintiffs from DMAAR and its MLS. They append an assertion to this claim to allege horizontal price-fixing. The claim under Iowa Code section 553.5 is that defendants engaged in a monopolistic practice by refusing to share MLS real estate commissions with them.

The trial court dismissed the petition on alternative grounds. In affirming the dismissal though, we need consider only one. There was no antitrust injury, and without an antitrust injury, the provisions of Iowa Code chapter 553 do not apply.

I. In adopting Iowa Code chapter 553, the legislature left us without authority to innovate from the federal courts’ understanding of federal antitrust law. In the preliminary appeal involved in this dispute, we again pointed out that Iowa Code section 553.2 provides that the chapter is to be “‘construed to complement and be harmonized with the applied laws of the United States which have the same or similar purpose,’ and ‘shall be made to achieve uniform application of the state and federal laws prohibiting ... monopolistic practices.’ ” Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 182 (2001) (quoting Iowa Code § 553.2).

The authorities we are obliged to follow make it clear that antitrust laws were not intended to deal with claimed wrongs inflicted on individual parties. Their function is only to foster the public’s access to a freely competitive market. Antitrust is in place to protect the market, not any individual merchant doing business there. The marketplace is often unfair, sometimes brutal; sometimes tortious acts take place there. Chapter 553 presupposes all this. But, until an act impacts on the public’s access to a competitive market, the injured are left to proceed with traditional tort or contract remedies. Iowa Code chapter 553 simply does not provide a remedy for a private wrong. Cases holding this include Dial A Car, Inc. v. Transportation, Inc., 82 F.3d 484, 486-87 (D.C.Cir.1996); National Ass’n of Review of Appraisers & Mortgage Underwriters, Inc. v. Appraisal Foundation, 64 F.3d 1130, 1135 (8th Cir.1995); Products Liability Insurance Agency, Inc. v. Crum & Forster Insurance Cos., 682 F.2d 660, 663-64 (7th Cir.1982).

The record here contains no hint that the public was inhibited from access to services of real estate brokers. The proofs are unanimous to the contrary. Iowa Realty’s share of the local market decreased from 71.7% in 1996 to 61.5% in 2001, roughly a 10% decline. Next Generation’s market share was 2.6% in 1999, and is projected at 6.2% by 2006. There were fifty-one Des Moines real estate agencies in 1996, and the same number in 2001. Of those fifty-one firms in 2001, twenty were recent entrants, after 1996. Plaintiffs’ own growth during the period has been remarkable.

In resisting the assertion that the market had been adversely affected by the wrongs plaintiffs assert, the defendants offered an impressive analysis by a highly qualified expert in the field. He supported his opinion with a careful statistical analysis. Although plaintiffs think otherwise, the issue was not joined on the question when plaintiffs offered the anecdotal evidence of one witness, unsupported by any statistical data. She elected not to enter the Des Moines real estate business because of defendants’ conduct.

II. The trial court correctly rejected plaintiffs’ price-fixing contention because that contention lacked any support in the record. Although MLS participants typically apply a commission rate of 7%, there is no evidence that the information exchanged through MLS participation causes or induces MLS participants to always charge and subsequently split the 7% commission rate on sold properties. The practice of splitting a 7% commission was established many years ago in the Des Moines business community, and there is no suggestion that the defendants in any way took part in originating the practice or furthering its continuance.

The petition was correctly dismissed.

AFFIRMED.

All justices concur except TERNUS and WIGGINS, JJ., who take no part.

      . Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Schoff v. Combined Ins. Co., 604 N.W.2d 43, 45 (Iowa 1999). See generally Iowa R. Civ. P. 1.981.

      . The same dispute was involved in our opinion in Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178 (Iowa 2001), in which we reversed the granting of the temporary injunction. Following remand, the district court conducted a hearing, reviewed extensive discovery taken following the remand, and made extensive findings, which these plaintiffs urge for our consideration. We, however, find those findings of scant relevance here. The hearing on a temporary injunction is preliminary, and the one here was made irrelevant when we ordered it vacated in the prior decision. Temporary injunctions, by their very nature, are preliminary and thus do not contribute to any determination of facts in dispute. Econ. Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 648 (Iowa 1995). It would be especially inappropriate to factor the temporary-injunction evidence ruling here. Since it was entered, parties have been added and dropped, and extensive discovery has been undertaken. We base our review on the record made since then.


text:
    Terry L. COX, Sr., Appellant, v. STATE of Iowa and Gregory E. Jones, Appellees.
    No. 03-0409.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      George A. LaMarca and Justin E. La-Van of LaMarca & Landry, P.C., West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Craig Kelinson, Special Assistant Attorney General, for appellees.
   CADY, Justice.

In this appeal, we must decide whether a wrongfully imprisoned person compensated under section 663A.1 is barred from maintaining a state tort claim based on acts or omissions of his attorney relating to the filing of a motion for new trial to obtain relief from the underlying conviction. The district court found the action was barred and dismissed the petition. On our review, we affirm the district court’s decision.

I. Background Facts and Proceedings.

Terry Cox was convicted in 1997 of sexually abusing his eleven-year-old stepdaughter. The conviction followed a jury trial, in which the stepdaughter testified against Cox by describing acts of abuse. Gregory E. Jones, a public defender in Woodbury County, represented Cox. Cox was sentenced to a term of incarceration not to exceed twenty-five years. He began serving his sentence on June 16, 1997.

On July 23, 1999, the stepdaughter recanted her trial testimony in a videotaped statement given to the public defender’s office. In her statement, she denied any sexual contact by Cox and offered an explanation for her deception at trial.

On June 20, 2000, eleven months later, Jones filed a motion for new trial with the district court based on the recantation. The State filed a resistance. Following a hearing in April 2001, the district court vacated the judgment and sentence and ordered a new trial. Cox was released from prison, and the State later dismissed the charges.

Cox then made application with the district court pursuant to Iowa Code section 663A.1 (2001) for a finding that he had been wrongfully imprisoned. On January 22, 2002, the district court found Cox was a wrongfully imprisoned person.

On February 11, 2002, Cox filed a claim with the State Appeal Board pursuant to the Tort Claims Act for damages based on his status as a wrongfully imprisoned person. On March 13, 2002, he filed the present action against the State and Jones. The petition generally alleged that Jones failed to file the motion for new trial within a reasonable period of time after learning of the recantation and engaged in conduct constituting misrepresentation prior to filing the motion. As a result, Cox alleged his period of incarceration was unnecessarily extended, causing a variety of damages. Cox asserted the claims of legal malpractice, breach of fiduciary duty, and misrepresentation. In response to the petition, the State and Jones raised as affirmative defenses that Jones was immune from suit and that the wrongful imprisonment claim was Cox’s exclusive remedy.

On July 3, 2002, the State Appeal Board, together with the Attorney General and the district court, approved a settlement of the wrongful imprisonment claim. The amount of the settlement was $197,812.33, and the district court entered judgment in this amount.

On December 5, 2002, the State and Jones moved for summary judgment in the action for legal malpractice, breach of fiduciary duty, and misrepresentation. The motion claimed the settlement of the wrongful imprisonment claim barred the tort claim. It also claimed Jones was immune from tort liability as a matter of law.

The district court found the wrongful imprisonment claim was Cox’s exclusive remedy and granted summary judgment. It did not address the immunity issue. Cox appeals.

II. Scope of Review.

Our review of a summary judgment ruling is for correction of errors at law. Iowa R.App. P. 6.4.

III. Wrongful Imprisonment.

Iowa is one of many jurisdictions that has enacted legislation providing compensation for individuals who have been wrongfully convicted and incarcerated. See Adele Bernhard, Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjustly Convicted and Later Exonerated, 52 Drake L.Rev. 703, 704-06 (2004) (discussing states’ efforts to compensate wrongfully convicted individuals); Alberto B. Lopez, $10 and a Denim Jacket? A Model Statute for Compensating the Wrongly Convicted, 36 Ga. L.Rev. 665, 672 n. 36 (2002) (listing sixteen jurisdictions, including the federal system, that have enacted statutes for compensation of wrongfully incarcerated persons). Generally, these statutes circumscribe the eligibility requirements and specify the recoverable damages. Id. at 672. They apply to individuals who were innocent of the crime of which they were convicted. Id. at 672-73.

Under the Iowa statute, a “wrongfully imprisoned person” is identified by means of five criteria. See Iowa Code § 663A.1(1). Generally, these criteria require a person to have been charged with a felony or aggravated misdemeanor; a conviction must have been entered by a court or a jury of a felony or aggravated misdemeanor; a sentence must have been imposed providing for an indeterminate term of incarceration or for a term of incarceration not to exceed two years in the event the offense was an aggravated misdemean- or; the judgment and sentence must have been subsequently vacated, dismissed, or reversed with no further proceedings to follow; and the person must have been imprisoned solely due to the conviction. Id. The district court must then make a finding that the person did not commit the offense or any lesser offense, or that no person committed the offense. Id. § 663A.1(2). An individual who satisfies these requirements has a right to commence a civil action against the state based on the wrongful imprisonment. Id. § 663A.1(3)(6). The action is brought under the State Tort Claims Act, Iowa Code chapter 669. Id. The wrongful imprisonment statute specifically provides that a wrongful conviction claim is considered to be a state tort claim under chapter 669. Id. § 663A.1(5). The statute then provides:

Notwithstanding section 669.8, however, an action brought under this section shall not preclude or otherwise limit any action or claim for relief based on any negligent or wrongful acts or omissions which arose during the period of wrongful imprisonment, but which are not related to the facts and circumstances underlying the conviction or proceedings to obtain relief from the conviction.

Id.

Although this provision forms the basis for the dispute in this case, we begin our consideration of its meaning by examining section 669.8, the provision identified in the prepositional phrase of section 663A.1(5). In doing so, we are mindful that we are guided by what the legislature said, not by “ ‘what it should or might have said.’ ” In re Name Change of Reindl, 671 N.W.2d 466, 469 (Iowa 2003) (quoting Consol. Freightways Corp. v. Nicholas, 258 Iowa 115, 124, 137 N.W.2d 900, 906 (1965)). Our goal is to determine the intent of the law, gleaned generally from the statutory language. Nash Finch Co. v. City Council of Cedar Rapids, 672 N.W.2d 822, 826 (Iowa 2003) (citing Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 864 (Iowa 2003)). We also consider the statute’s “subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of the various interpretations.” State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003) (citing United Fire & Cas. Co. v. Acker, 541 N.W.2d 517, 519 (Iowa 1995)).

Section 669.8, the statute mentioned in section 663.A1(5), is part of the comprehensive State Tort Claims Act, which permits, subject to numerous exceptions, claims against the state caused by negligent acts or omissions of state employees. See generally Iowa Code ch. 669. The section provides:

The final judgment in any suit under this chapter shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the state or the employee of the state whose act or omission gave rise to the claim. However, this section shall not apply if the court rules that the claim is not permitted under this chapter.

Id. § 669.8.

It is clear our legislature, as a condition of the state’s limited waiver of immunity under the State Tort Claims Act, intended a judgment entered in an action permitted under the Tort Claims Act to constitute a bar to other related actions by a claimant. See Magers-Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996) (stating that the Tort Claims Act recognizes a remedy for a cause of action that would not otherwise exist because of common-law immunity) (citing Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990)). Yet, we have recognized the difficulty of defining the scope of the bar under section 669.8. This difficulty is based on the meaning of the phrase “the same subject matter.” Speed v. Beurle, 251 N.W.2d 217, 219 (Iowa 1977). In Speed, we held the “same subject matter” standard barred an action by a claimant against a state employee for punitive damages after the claimant previously obtained judgment against the state for compensatory damages when the negligence that gave rise to the first action was the same negligence that gave rise to the second action. Id.

Generally, a similar provision in the Federal Tort Claims Act, 28 U.S.C. § 2676, has been interpreted by the federal courts to mean that the bar extends beyond the same claim or cause of action. Serra v. Pichardo, 786 F.2d 237, 240-41 (6th Cir.1986). Instead, the bar extends to preclude actions arising from the same conduct and events directed towards the claimant. Id.; see Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir.1987). Thus, once a claimant recovers under the tort claim act against the government, the judgment serves to bar an action against the employee whose act or omission gave rise to the claim.

In enacting section 663A.1(5), our legislature must have recognized the conflict, or potential conflict, between labeling a wrongful imprisonment claim as a state tort claim and the rule that a state tort claim judgment bars other actions dealing with the “same subject matter.” The conflict can arise because an action under the Tort Claims Act is based on the negligent act or omission of a state employee. Iowa Code § 669.2(3)(a). In contrast, an action under chapter 663A is based on imprisonment of an innocent person, unrelated to any proof of negligence responsible for the unjust verdict or wrongful imprisonment. See id. § 663A.1(2) (requiring a finding only that the individual did not commit the crime). Nevertheless, negligence of a state employee can implicate the wrongful imprisonment of a person, which presents the potential conflict for two actions that seemingly address the same subject matter. In enacting section 663A.1(5), our legislature created a standard separate from section 669.8 that permits a state tort claim independent of a chapter 663A claim, even though the case may involve the same subject matter, as long as the state tort claim is not related to the “facts and circumstances underlying the conviction or proceedings to obtain relief from the conviction.” Id. § 663A.1(5). Section 663A.1(5) clearly envisions that a wrongfully imprisoned person may pursue a claim for negligence related to the wrongful imprisonment under the State Tort Claims Act in some instances even though a judgment has been entered under chapter 663A. If this were not true, there would be no reason for the legislature to enact section 663A.1(5). Thus, the determination of those instances when the bar does not apply hinges on the meaning of “the facts and circumstances underlying the conviction or proceedings to obtain relief from the conviction.”

The State argues that the legislature intended to clarify that a wrongfully imprisoned person who recovers damages under section 663A.1 is not barred from suing for tortious acts or omissions committed by state employees against a person while the person was in prison that were outside the criminal process, such as lawsuits based on slip and fall claims while in prison and claims for negligent medical care while in prison. On the other hand, the State asserts that the legislature wanted to bar any further litigation arising from the criminal case once compensation has been granted to a wrongfully imprisoned person under chapter 663A. Cox argues that he is not barred from pursuing a negligence action in this case because the underlying negligent action he now asserts is not related to the facts and circumstances of the conviction, and it occurred before the commencement of the proceeding to obtain relief from conviction. For this reason, Cox urges that the claim is unrelated to the facts and circumstances of either the conviction or the proceedings to attain relief from the conviction based on the recantation of trial testimony.

We think the statute is broader in scope than asserted by the State, but not as broad as to capture the claim brought by Cox. In recognizing that the negligence of a state employee may be a contributing cause of a wrongful imprisonment, the legislature intended to permit a second claim by a wrongfully imprisoned person only if the negligence was not related to the facts and circumstances of the conviction or the subsequent proceedings for relief from the conviction. However, the “facts and circumstances” of a conviction would necessarily include the negligent acts or omissions of defense counsel in the context of a claim that resulted in either an unjust conviction or wrongful imprisonment. Thus, a tort claim based on ineffective representation by defense counsel would normally be barred under the section 663A.1(5) standard because the acts or omissions of the defense counsel would be part of the facts and circumstances of the conviction or proceedings to obtain relief from conviction. Cox argues, however, that this case is different because he is not complaining about the negligence or other conduct of his defense attorney as it relates to the circumstances surrounding his conviction, or even the circumstances surrounding the attorney’s conduct in presenting the motion for new trial. Instead, he claims this action is about the conduct of the defense attorney after the conviction and before the motion for new trial was filed.

We do not think our legislature intended to draw fine lines between a permissive and impermissive state tort claims action by innocently imprisoned persons after a judgment has been entered under chapter 663A. There would be no reason to permit a claim for ineffective assistance of counsel based on negligent delay in filing a motion for new trial and then bar a like claim based on procrastination by defense counsel after filing a motion for new trial. Furthermore, while section 663A.1(5) refers to negligence not related to “'proceedings to obtain relief from the conviction,” the comprehensive statutory standard includes the “facts and circumstances underlying” the proceeding. Id. § 663A.1(5) (emphasis added). This statutory language would necessarily include circumstances leading up to the time actual formal proceedings were commenced. Thus, we conclude the claim brought by Cox is “related to the facts and circumstances underlying the ... proceedings to obtain relief from the conviction.” Id.

Section 663A.1(5) is intended to permit a wrongfully imprisoned person to bring separate actions under chapter 663A and chapter 669, even though they both concern the same wrongful imprisonment, when there was negligence by a state employee that was responsible for the conviction or wrongful imprisonment based on acts or omissions apart from the process responsible for the conviction and wrongful imprisonment. For example, a state tort claim by a wrongfully imprisoned person based on allegations that the prison warden negligently continued the imprisonment beyond the time permitted by law would not be barred. Such a claim, although part of the same subject matter, would not be related to any negligence involving the conviction or relief from conviction. The claim in the present case, however, is related to the proceeding for relief from conviction, and is barred. In a case of this nature, a wrongfully imprisoned person has a choice to bring an action under chapter 663A, without having to establish negligence or other wrongful conduct, or to proceed under the Tort Claims Act based upon negligence. Cox chose to proceed under chapter 663A, and is now barred from proceeding again under chapter 669.

IV. Conclusion.

We affirm the judgment of the district court.

AFFIRMED.

      . At least one circuit court of appeals has questioned whether the word "claim” within the rule that a final judgment constitutes “a bar to 'any' action by the claimant against the employee whose act or omission gave rise to the claim” refers to the original claim or the claim asserted in the second action. See Serra, 786 F.2d at 239 & n. 2. We think the most sensible interpretation requires the "claim” under section 669.8 to refer to the original or first action. This interpretation is bolstered by the last sentence of section 669.8.