Marvin Mitchell v. Tammy Christensen ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0589
Filed November 27, 2019
MARVIN MITCHELL,
Plaintiff-Appellant,
vs.
TAMMY CHRISTENSEN,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
Marvin Mitchell appeals the denial of his motion to vacate the order granting
summary judgment for Tammy Christensen. AFFIRMED.
John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellant.
Anita Dhar Miller and Benjamin T. Erickson of Grefe & Sidney, P.L.C., Des
Moines, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ. May, J. takes
no part.
2
DOYLE, Judge.
Marvin Mitchell appeals the denial of his motion to vacate the order granting
summary judgment for Tammy Christensen on his tort claims. Mitchell contends
“newly discovered” material warrants vacation of the summary judgment order.
Because the material Mitchell provided to the court is not “newly discovered
evidence” we affirm the district court’s denial of Mitchell’s motion.
I. Background Facts and Proceedings.
Mitchell filed a petition against Christensen, Louis Bonacci, and Erik Fisk,1
alleging claims of conversion of an engagement ring, theft of Mitchell’s mail and
identity, defamation, publication of defamatory materials, wrongfully
communicating with Mitchell “in a manner calculated to intimidate or annoy him,
including threats of violence,” and prosecution of “false charges of domestic
abuse” with the intent to, among other things, “use the legal process to harass”
and “inflict emotional distress.” During a contentious discovery process, Mitchell
requested production of documents including copies of text messages from
Christensen’s cellphone account. Christensen objected. Mitchell moved to
compel. Christensen was ordered to produce, among other things, all emails, and
text messages from January 1, 2016 to November 2017 that contained Mitchell’s
name. Alleging Christensen violated the order, Mitchell renewed his motion to
compel. Christensen was again ordered to produce the records she received from
her cellphone carrier. She failed to do so.
1 Fisk was later dismissed from the suit.
3
Christensen moved for summary judgment. In resisting the motion, Mitchell
alleged that Christensen made false statements in her deposition and failed to
comply with his discovery requests. After a hearing, the district court granted
summary judgment for Christensen noting, in part,
The Court has considered Mitchell’s complaint that
Christensen has not provided certain text messages in discovery.
Mitchell does not, however, explain what evidence those text
messages would likely contain. More to the point, Mitchell does not
explain how those text messages would create fact questions
regarding Mitchell’s claims. Nor has Mitchell submitted the affidavit
required by Rule 1.981(5). Therefore, Mitchell’s complaint about
Christensen’s texts does not provide a basis to refuse summary
judgment.
The court dismissed all claims against Christensen.
Thereafter, Bonacci reached a settlement with Mitchell. Bonacci then gave
a deposition in which he testified that during the litigation with Christensen, he was
aware that Christensen refused to provide documents to her counsel for discovery
purposes and provided false documentary evidence. Based on Bonacci’s
testimony, Mitchell petitioned to vacate or modify the summary judgment on the
grounds Christensen practiced irregularity or fraud in obtaining the judgment and
upon newly discovered evidence. See Iowa R. Civ. P. 1.1012(2), (6) (2018).
Christensen resisted, arguing any alleged fraud was intrinsic fraud2 and Mitchell
produced no newly discovered evidence in support of his petition. Mitchell then
2 In order to vacate a judgment under rule 1.1012(2), a party must show the
opposing party engaged in fraud extrinsic to the judgment. See In re Marriage of
Cutler, 588 N.W.2d 425, 429 (Iowa 1999). “Extrinsic fraud pertains to the manner
in which the judgment was procured.” In re Marriage of Kinnard, 512 N.W.2d 821,
823 (Iowa Ct. App. 1993). While a judgment may be vacated under rule 1.1012(2)
based on extrinsic fraud, it cannot be vacated based on intrinsic fraud. Phipps v.
Winneshiek Cty., 593 N.W.2d 143, 146 (Iowa 1999). “[I]ntrinsic fraud inheres in
the issues submitted to the court.” Id.4
supplied the court with copies of Christensen’s telephone records, including
twenty-two pages of text messages between Bonacci and Christensen covering
the period February 23 through February 28, 2018.3
Following a hearing, the district court denied Mitchell’s petition on two
grounds. The court held “that the matters alleged would be in the way of an
intrinsic fraud and, therefore, pursuant to Phipps v. Winneshiek County, 593
N.W.2d 143 (Iowa 1999) the judgment cannot be vacated.” The court also held
“no newly discovered evidence has been provided to the Court showing the
outcome would have been different. No evidence has been produced that is
material to the issues in the case and is not merely cumulative and impeaching
that would have changed the outcome.” Mitchell appeals.
II. Scope and Standard of Review.
We review the district court’s refusal to vacate judgment for correction of
errors at law. See In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999). We
will reverse only if the district court has abused its discretion. In re Adoption of
B.J.H., 564 N.W.2d 387, 391 (Iowa 1997). The court has a large amount of
discretion in determining whether to vacate a prior judgment, but the exercise of
discretion must have some support in the record. Id.; In re Marriage of Kinnard,
512 N.W.2d 821, 823 (Iowa Ct. App. 1993).
3Sometime after Bonacci’s deposition, Bonacci furnished some 300 pages of text
messages to Mitchell. The 22 pages furnished to the court were a “random
sampling” of the 300 pages.
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III. Analysis.
Did the district court properly deny the petition to vacate in finding that
Mitchell failed to provide newly discovered evidence?4 To vacate a judgment
based on newly discovered information under rule 1.1012(6), a party must show:
(1) the evidence is newly discovered and could not, in the exercise
of due diligence, have been discovered prior to the conclusion of the
trial; (2) the evidence is material and not merely cumulative or
impeaching; and (3) the evidence will probably change the result if a
new trial is granted.
Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995). Mitchell strikes out on
all three requirements.
“Under Iowa law, ‘newly discovered evidence’ sufficient to merit a new trial
is evidence which existed at the time of trial, but which, for excusable reasons, the
party was unable to produce at the time.” See id. at 762-63. Mitchell submitted
twenty-two pages of text messages to the court. The text messages did not exist
at the time of the summary judgment hearing as they all postdated the hearing. So
they do not meet the definition of “newly discovered evidence.”
Secondly, upon our examination of the text messages we, like the district
court, find that none of the messages are material to the issues in the case. The
text messages relevant to the litigation consisted mainly of speculation between
Christensen and Bonacci discussing when and how the court would decide on the
4 On appeal Mitchell abandons his rule 1.1012(2) fraud argument made to the
district court. He now asserts, “under the facts and results of the present case,
there was no ‘extrinsic’ or ‘intrinsic’ fraud practiced.” Since the district court
properly denied the petition to vacate on the newly discovered evidence issue, we
need not discuss the fraud issue.
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February 2018 summary judgment hearing. The messages did not concern
Mitchell’s allegations.
Thirdly, we find nothing in the submitted text messages that would probably
change the result if the summary judgment is set aside and a trial granted.
So we agree with the district court that Mitchell did not present any newly
discovered evidence material to the issues in the case showing the outcome would
have been different. The district court properly exercised its discretion in denying
Mitchell’s motion to vacate. We affirm.
AFFIRMED.