Billy Dean Carter, Bill G. Carter, and the Estate of Shirley D. Carter, by and through Bill G. Carter v. Jason Carter

IN THE SUPREME COURT OF IOWA
No. 18–0296
Submitted January 21, 2021—Filed March 19, 2021
BILLY DEAN CARTER, BILL G. CARTER, and the ESTATE OF
SHIRLEY D. CARTER, by and through BILL G. CARTER, Executor,
Appellees,
vs.
JASON CARTER,
Appellant.
Appeal from the Iowa District Court for Marion County, Martha L.
Mertz, Judge.
The defendant appeals a judgment against him for his mother’s
death. AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which all
participating justices joined. Appel and Mansfield, JJ., took no part in the
consideration or the decision of the case.
Allison F. Kanne (argued) of Wandro & Associates, P.C., Des Moines,
and Christine E. Branstad (argued) and Nathan A. Olson of Branstad &
Olson, Des Moines, for appellant.
Mark E. Weinhardt (argued) and David N. Fautsch of the Weinhardt
Law Firm, Des Moines, for appellees.
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CHRISTENSEN, Chief Justice.
In this case the defendant, Jason Carter (Jason), was civilly accused
by his father, Bill Carter (Bill), and brother, Billy Carter (Billy), of
intentionally shooting his mother, Shirley Carter (Shirley), and causing her
death. Before the trial began, the Iowa Department of Criminal
Investigations (DCI) agreed to share certain information from its
investigation on the murder with the parties in response to a subpoena
served on it by the plaintiffs. A jury determined Jason was civilly liable.
The state then subsequently charged Jason with first-degree murder. As
a result of discovery during that criminal proceeding, the state provided
Jason with exculpatory evidence.
Jason appeals from his civil case and argues the district court erred
by: (1) denying his motion for continuance until law enforcement decided
whether to prosecute him; (2) denying his motion to quash the plaintiffs’
subpoena to DCI; (3) denying his motion for judgment notwithstanding the
verdict; (4) dismissing his first petition to vacate the judgment; (5) denying
his motion for recusal; and (6) dismissing his second petition to vacate the
judgment as time-barred. We conclude that the district court did not
abuse its discretion in denying Jason’s motion for continuance, judgment
notwithstanding the verdict, first petition to vacate the judgment, and
motion for recusal. Jason’s motion to quash the subpoena to DCI was
properly denied, and the district court judge lacked jurisdiction to hear his
second petition to vacate the judgment because it was untimely.
I. Background Facts and Proceedings.
Shirley farmed with her husband, Bill, in Marion County. Early in
the morning of July 19, 2015, the couple left their farmhouse to get coffee
together. Afterward, Bill dropped Shirley off back at the house. A neighbor
saw Bill leave the home around 7:45 a.m. He was taking a load of corn in
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a semitrailer to a processing facility about an hour drive away in Eddyville,
Iowa. He arrived at the processing facility at 9:01 a.m. and left at 9:22
a.m. He stopped at a Casey’s General Store in Lovillia, Iowa, at 9:54 a.m.
and then drove to a farm where he rented land to reload his semitrailer
with corn. As Bill was driving back home, he received a call from his
daughter, Jana Lain, telling him that Jason called her and said he found
Shirley dead at the home but he wouldn’t call 911. Bill called 911 as he
rushed back to the house.
Jason is a farmer like his parents and was also taking a load of corn
to Eddyville that morning. His truck was seen exiting the processing
facility at approximately 9:58 a.m. He went to a different farm, where he
sometimes parked, to drop off his tractor trailer. He then drove his pickup
truck back to his parents’ home. Jason called his sister at 11:08 a.m. to
tell her that their mother was dead in the home. He called 911 at
11:11 a.m. and told the operator his mother was dead and that she seemed
to have been on the floor for two hours. He also stated there was a hole
through the floor and in the refrigerator. At some point, Jason hid the
second cell phone he had for texting a woman he was having an affair with
in the engine compartment of his vehicle. Bill arrived at the house shortly
after Jason called 911. It was later determined that Shirley had been
fatally shot twice.
Shirley’s family was allowed back into the farmhouse two days after
her death. The family found evidence DCI had missed, including a gun
safe stored in the basement of the house. One gun was missing from the
safe—a .270 Remington high-powered rifle. DCI collected the gun safe.
Investigators determined that the bullet fragments collected from the crime
scene had been fired from a high-powered rifle. Bill had shot the missing
.270 rifle into an earthen bank once, and law enforcement was able to
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recover bullets from the location. A criminalist concluded that the
fragments from the crime scene were consistent with coming from a high-
powered rifle in the .270–.280 caliber range. The missing rifle has not
been located to date. Jason told law enforcement that he had never
touched the gun safe or known his parents had one until Shirley’s death.
Bill on the other hand thought Jason and his wife had given the gun safe
to him as a gift. Ultimately, Jason’s fingerprints were found on the gun
safe. The location of some of the fingerprints was consistent with that of
someone assembling the gun safe.
On January 5, 2016, approximately six months after Shirley’s death,
the plaintiffs Bill and Billy, through the Estate of Shirley Carter, filed this
suit against Jason and alleged he shot her causing her death. At this point
no criminal charges were pending. On July 5, the plaintiffs served a
subpoena to DCI requiring it to produce the entire law enforcement
investigation file on Shirley’s homicide. DCI filed a motion to quash the
subpoena. On April 17, 2017, the plaintiffs met with DCI to discuss
whether they would be willing to produce certain information. DCI agreed
to produce certain documents to both the plaintiffs and Jason. The
plaintiffs agreed to share information with DCI as well. As a result of the
meeting, the plaintiffs served a second subpoena on DCI requesting the
agreed-upon documents:
1. All documents, whether in print, audio, or video,
reflecting or relating to any interview of or conversation with
Jason Carter conducted by the DCI and/or the Marion County
Sheriff’s Office following the death of Shirley Carter on June
19, 2015.
2. All documents . . . relating to any interview of or
conversation with Bill G. Carter conducted by the DCI and/or
the Marion County Sheriff’s Office following the death of
Shirley Carter on June 19, 2015.
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3. Any report . . . relating to any investigation by any
agent of officer . . . regarding the level of grain contained in
Bill G. Carter’s semi-tractor trailer on June 19, 2015.
4. All documents reflecting or relating to cell phone text
messages made to and from [certain phone numbers] on or
around June 19, 2015.
5. All documents reflecting or relating to reports of the
processing of, and photography of, the home and premises in
which Shirley Carter’s death apparently occurred on June 19,
2015 by DCI and/or the Marion County Sheriff’s Office. This
item includes but is not limited to any sketch, diagram, or
map of the home and/or premises.
6. All documents reflecting or relating to reports of the
collection of, and the analysis of, fingerprint evidence gathered
and processed by DCI and/or the Marion County Sheriff’s
Office from the home and premises in which Shirley Carter’s
death apparently occurred on June 19, 2015.
7. All documents reflecting or relating to reports of the
collection of, and the analysis of, firearms and/or ballistics
evidence gathered and processed by DCI and/or the Marion
County Sheriff’s Office from the home and premises in which
Shirley Carter’s death apparently occurred on June 19, 2015.
8. Transcripts of the depositions taken pursuant to I.
R. Crim. P. 2.5(6) of Shelly Carter, Chase Carter, Cecil Harry,
and Ginger Harry.
9. All security or other video evidence depicting Bill G.
Carter at Casey’s General Stores outlets in or near either
Lovillia, Iowa or Milo, Iowa on June 19, 2015.1
Jason moved to quash the subpoena. On August 18, the district court
denied the motion to quash. On December 5, the day trial was scheduled
to commence, Jason moved to continue the trial until law enforcement
made a final decision as to whether criminal charges would be filed. The
district court denied the motion for continuance.
The jury trial began as scheduled on December 5. At the close of
the plaintiffs’ case, Jason moved for a directed verdict on the plaintiffs’
1Based on the record, items number eight and nine were not produced to the
parties.
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negligence and battery claim. The district court granted his motion as to
the negligence claim and denied his motion as to the battery claim. At the
close of all evidence on the plaintiffs’ battery claim, Jason moved for a
directed verdict. The court denied this motion. On December 15, the jury
found Jason civilly liable for Shirley’s murder, and on December 18 he
moved for judgment notwithstanding the verdict. On the same date, the
state charged Jason criminally with first-degree murder. On February 14,
2018, the district court denied Jason’s motion for judgment
notwithstanding the verdict.
Beginning in February, the state provided Jason with discovery in
the criminal case. On March 21, he was acquitted of murder. On May 30,
Jason filed a petition to vacate the judgment based on newly discovered
evidence. The court held a two-and-a-half-day hearing on the petition. On
January 31, 2019, the district court dismissed the petition. On August
30, Jason filed a second petition to vacate the judgment based on newly
discovered evidence. While this petition was pending before the judge,
Jason filed a motion for the judge to recuse herself due to an allegation
that the judge had told an attorney Jason “was guilty as sin” and was seen
speaking ex parte to the plaintiffs’ counsel in the courthouse during the
civil trial. The district court denied Jason’s motion for recusal and
dismissed his second petition finding it lacked jurisdiction due to being
filed past the one-year deadline contained in Iowa Rule of Civil Procedure
1.1013. Jason appeals to this court.
II. Standard of Review.
We review a district court’s denial of a motion for continuance for
abuse of discretion. State ex rel. Miller v. New Womyn, Inc., 679 N.W.2d
593, 595 (Iowa 2004). A party challenging a denial of a motion for
continuance carries a heavy burden. Id. “Because evidentiary privilege in
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Iowa is based on statute, our review is on error.” State v. Richmond, 590
N.W.2d 33, 34 (Iowa 1999). However, we review the admissibility of
evidence alleged to be privileged for an abuse of discretion. State v.
Anderson, 636 N.W.2d 26, 30 (Iowa 2001). We review a district court’s
denial of a motion for judgment notwithstanding the verdict for correction
of errors at law. Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998).
Our review is limited to the grounds stated in the motion for directed
verdict. Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990). We give a
district court wide discretion in ruling on a petition to vacate the judgment
or grant a new trial based upon newly discovered evidence and an abuse
of discretion is needed for reversal. Soults Farms, Inc. v. Schafer, 797
N.W.2d 92, 109 (Iowa 2011). We review a judge’s decision on a motion to
recuse for abuse of discretion. State v. Hoyman, 863 N.W.2d 1, 7 (Iowa
2015). We review the district court’s decision to dismiss Jason’s second
petition to vacate the judgment as untimely for correction of errors at law.
Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 565 (Iowa 2018);
Harrington v. Univ. of N. Iowa, 726 N.W.2d 363, 365 (Iowa 2007).
III. Analysis.
Jason claims the district court erred in the following ways: (1) by
denying his motion for continuance until the criminal investigation
concluded; (2) by denying his motion to quash the plaintiffs’ subpoena to
DCI; (3) by denying his motion for judgment notwithstanding the verdict;
(4) by dismissing his first petition to vacate the judgment based on newly
discovered evidence; (5) by denying his motion for recusal; and (6) by
dismissing his second petition to vacate the judgment.
A. Motion for Continuance. The parties dispute whether error
was preserved on this issue. The plaintiffs argue error was not preserved
because the stated grounds for a continuance described to the district
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court do not resemble the grounds presented on appeal. Specifically, the
plaintiffs contend Jason moved for continuance at trial until law
enforcement made a decision whether to prosecute, but on appeal takes
the position that a continuance should have been granted because the
evidence obtained from DCI was incomplete. The record shows that
Jason’s counsel “move[d] that this case be continued to such time as law
enforcement makes a final decision or Ed Bull, the county attorney, makes
a final decision as to whether this case will be prosecuted or not.”
On appeal, Jason states that he moved for continuance until the
homicide investigation concluded because he suspected there was
significant exculpatory evidence held by DCI and because DCI provided
only piecemeal inculpatory evidence to the parties. It is clear enough that
the reason Jason had moved for a continuance of the trial until a decision
was made whether to prosecute was because in a criminal case the
government would be required to disclose exculpatory evidence to him.
See Harrington v. State, 659 N.W.2d 509, 522 (Iowa 2003). Therefore, we
determine the reason stated for the continuance at the time the motion
was made and the reason for the continuance offered on appeal are
sufficiently similar and error was preserved.
“A continuance may be allowed for any cause not growing out of the
fault or negligence of the movant, which satisfies the court that substantial
justice will be more nearly obtained.” Iowa R. Civ. P. 1.911(1). A trial
court’s discretion in denying a continuance is “very broad.” State v.
Grimme, 338 N.W.2d 142, 144 (Iowa 1983) (quoting State v. McNeal, 261
Iowa 1387, 1393–94, 158 N.W.2d 129, 133 (1968)). We will not interfere
with a trial court’s ruling on a motion for continuance “unless it clearly
appears that the trial court has abused its discretion, and an injustice has
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resulted therefrom.” Id. (quoting State v. Elliston, 159 N.W.2d 503, 509
(Iowa 1968)).
Jason has failed to show the trial court abused its discretion when
it denied his motion for continuance until law enforcement made a
decision whether to prosecute him for his mother’s murder. The plaintiffs
have two years to file a wrongful death suit, and there is no rule requiring
trial courts to stay civil proceedings until criminal proceedings conclude.
See Iowa Code § 614.1 (2015); United States v. Kordel, 397 U.S. 1, 12–13,
90 S. Ct. 763, 769–70 (1970) (determining that simultaneous and related
civil and criminal proceedings did not violate the Constitution). It was
speculative whether criminal charges would ever be filed against Jason.
Although there may have been an ongoing investigation by law
enforcement, Jason had no criminal charges pending against him for his
mother’s death at the time the civil suit was filed. If we were to overturn
the district court’s decision to deny the motion as an abuse of discretion,
it may be necessary to continue every civil case where there is a possibility
criminal charges may be filed from related facts. See In re Mid-Atl. Toyota
Antitrust Litig., 92 F.R.D. 358, 359 (D. Md. 1981) (describing defendant’s
request for a stay of a civil trial until completion of criminal proceedings
where no criminal charges were pending as “unprecedented in its scope”
and a “blanket stay in . . . speculative circumstances”). If the district court
judge had granted Jason’s motion to continue until law enforcement made
a decision to file criminal charges, the continuance could have lasted far
into the future. The plaintiffs may be disadvantaged by a delay until such
unspecified time “as memories fade, witnesses become unavailable, and
evidence is lost.” State v. Christensen, 929 N.W.2d 646, 666 (Iowa 2019).
The district court did not abuse its discretion in denying the motion for
continuance.
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B. Motion to Quash. The second issue on appeal is whether the
district court abused its discretion in denying Jason’s motion to quash the
plaintiffs’ subpoena to DCI. We must answer the question of whether
Jason can use Iowa Code section 622.11 (2017) to prohibit the state from
voluntarily disclosing portions of the DCI file. Iowa Code section 622.11
states that, “[a] public officer cannot be examined as to communications
made to the public officer in official confidence, when the public interests
would suffer by the disclosure.” Jason takes an all or none approach and
argues that the district court should have either granted his motion to
quash or required all DCI evidence be provided to the parties. On the one
hand, he claims the district court gave the plaintiffs an unfair advantage
by allowing the state to provide segmented prejudicial evidence pursuant
to a private agreement. On the other hand, Jason claims the state cannot
waive the privilege in Iowa Code section 622.11 for use in civil trial.
The plaintiffs argue Jason has no right to prevent the state from
producing information in response to a civil subpoena because section
622.11 does not confer any rights on a private citizen. Therefore, the
plaintiffs claim Jason has no standing to quash the subpoena issued to
DCI. Because we conclude that the official information privilege in Iowa
Code section 622.11 cannot be invoked by a private citizen, we agree that
Jason does not have standing to object to the subpoenas directed at DCI.
When the state claims official information privilege under section
622.11, the court must decide whether the public interests would suffer
by the disclosure requested. See Nizzi v. Laverty Sprayers, Inc., 259 Iowa
112, 119, 143 N.W.2d 312, 316 (1966). “An official claiming the privilege
must satisfy a three-part test: (1) a public officer is being examined, (2) the
communication was made in official confidence, and (3) the public interest
would suffer by disclosure.” Hawk Eye v. Jackson, 521 N.W.2d 750, 753
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(Iowa 1994) (citing State ex rel. Shanahan v. Iowa Dist. Ct., 356 N.W.2d
523, 527 (Iowa 1984)). This case presents the unusual situation where it
is a private litigant, rather than the state, attempting to keep state
information confidential. Both parties rely on State ex rel. Shanahan v.
Iowa District Court, 356 N.W.2d 523, to support their argument.
In Shanahan, we determined that the district court had erred in
requiring the state to produce its entire DCI file to the litigants in a
wrongful death action in a double homicide case. Id. at 525. Initially the
plaintiffs served a subpoena on the state compelling production of its
entire investigatory file, but a temporary accommodation was reached
where the state agreed to provide to both parties the officers’ statements
regarding the crime scene, medical examiners, a state-engaged locksmith,
and lists of guests and employees at the hotel on the night in question. Id.
at 526. The defendants then served their own subpoena compelling
production of the entire DCI file. Id. The state asserted that the file was
privileged under Iowa Code section 622.11. Id. at 527. We enforced the
statutory privilege contained in section 622.11 and reversed the district
court’s order to disclose the entire DCI file. Id. at 31.
The present case is clearly different from Shanahan, because in this
case the state did not object or assert any privilege to the plaintiffs’ second,
more focused, subpoena. Jason claims that the protection against
disclosure of official information in section 622.11 does not turn on
whether law enforcement decides to assert the privilege. We disagree.
Iowa caselaw shows that only the state can claim the qualified privilege in
section 622.11. See id. at 527, 529 (referring to the privilege created by
section 622.11 as “the Governmental Privilege” and “the public officer
privilege”); Hawk Eye, 521 N.W.2d at 753 (“An official claiming the privilege
must satisfy a three-part test . . . .”) (emphasis added); Shannon v. Hansen,
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469 N.W.2d 412, 414 (Iowa 1991) (stating that section 622.11 creates “a
public officer privilege for communications” and that the state must satisfy
the three-part test to establish the privilege); see also 7 Laurie Kratky
Doré, Iowa Practice Series: Evidence § 5.501:2(B), at 436–37 (2020–2021
ed. 2020) (explaining that the government has the ability to claim the
official information privilege under section 622.11).
Jason additionally claims the district court erred by not accounting
for the public and private interests affected by disclosure of the evidence.
This argument fails to recognize that the aforementioned three-part test
and balancing of interests is only triggered by a claim of privilege by the
state. The state did not assert the official information privilege in this case,
so the district court was not required to balance the interests.
Furthermore, nothing in our caselaw or the language of section 622.11
suggests the state may not voluntarily disclose information that would be
covered by the official information privilege. In Shanahan, the state
voluntarily disclosed several documents from its investigation, as noted
above. 356 N.W.2d at 526, 531 (“The district court should have sustained
the State’s motion for a protective order to the extent that it sought to deny
the civil litigants access to DCI file materials not already disclosed
voluntarily to them.”).
Jason’s argument that the district court erred in denying his motion
to quash relies largely on his contention that the plaintiffs were given an
unfair advantage. However, our caselaw makes it clear the official
information privilege does not work to protect Jason’s interests. “The
interest of the public—public safety—is at stake, not the interest of the
officer or the person communicating in confidence.” Id. at 527. It can
similarly be stated that the interest at stake in section 622.11 is not the
interest of a private litigant in a civil suit, such as in this case. See A. W.
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Gans, Annotation, Constitutionality, Construction, and Effect of Statute or
Regulation Relating Specifically to Divulgence of Information Acquired by
Public Officers or Employees, 165 A.L.R. 1302 (1946) (stating that courts
have pointed out that the official information privilege accorded by various
jurisdiction’s statutes is not for the benefit of parties to litigation). When
the privilege is asserted, our courts balance “the State’s interest in
confidentiality against the private litigants’ interest in exhaustive
discovery”—not the private litigants’ interest in confidentiality. Shanahan,
356 N.W.2d at 525 (emphasis added).
The fact that a meeting between the plaintiffs and DCI occurred prior
to the plaintiffs’ service of the subpoena does not by itself indicate
prejudice and unfairness to Jason. Rather, it shows the plaintiffs were
following our rules of civil procedure that requires the parties to “take
reasonable steps to avoid imposing undue burden or expense on a person
subject to the subpoena.” Iowa R. Civ. P. 1.1701(4)(a); see also id. r.
1.501(3) (“Any discovery motion presented to the court must include a
certification that the movant has in good faith personally spoken with or
attempted to speak with other affected parties in an effort to resolve the
dispute without court action.”). For these reasons, we determine that
Jason does not have standing to object to the plaintiffs’ subpoena to DCI
on the basis of Iowa Code section 622.11.
C. Motion for Judgment Notwithstanding the Verdict. Jason
argues that the district court erred in denying his motion for judgment
notwithstanding the verdict because the plaintiffs did not offer evidence
sufficient for a reasonable mind to conclude Jason battered Shirley. At
the close of the plaintiffs’ case, Jason moved for a directed verdict on the
issue of causation claiming there was not enough time for him to have shot
his mother. Jason points to the video of his truck leaving the Cargill corn
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processing facility at approximately 9:58 a.m. the morning of the murder.
He claims he did not get to his parents’ farm until around 11:00 a.m. at
the earliest since it is an hour drive to his parent’s home and he switched
vehicles on the way. He argues there is no way for him to have shot his
mother and hid the gun sometime between his 11:00 a.m. arrival and the
time he called his sister at 11:08 a.m. to tell her Shirley was dead. He
additionally points to the lack of direct evidence and argues the plaintiffs
failed to offer evidence of a motive. We conclude that when viewing the
evidence in the light most favorable to the plaintiffs, a reasonable mind
could conclude by a preponderance of the evidence that Jason
intentionally shot his mother.
A person is subject to liability to another for battery if that person
acts intending to cause a harmful contact with the person of the other and
a harmful contact results. Nelson v. Winnebago Indus., Inc., 619 N.W.2d
385, 388 (Iowa 2000) (en banc). A motion for directed verdict or judgment
notwithstanding the verdict should be denied if there is substantial
evidence in support of each element of the plaintiffs’ claim. Valadez v. City
of Des Moines, 324 N.W.2d 475, 477–78 (Iowa 1982). “Evidence is
substantial when a reasonable mind would accept it as adequate to reach
a conclusion.” Johnson, 451 N.W.2d at 171. The district court is required
to view the evidence in the light most favorable to the party against whom
the motion is made, and we review the evidence in the same light. Fiala v.
Rains, 519 N.W.2d 386, 387 (Iowa 1994). Circumstantial evidence is
equally as probative as direct evidence. Iowa R. App. P. 6.904(3)(p). It is
for the jury to determine the credibility of witnesses. State v. Dudley, 856
N.W.2d 668, 676–77 (Iowa 2014).
Timeline: Although evidence was presented that the window of
opportunity for Jason to have shot his mother is tight, a reasonable mind
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could determine he had time. Evidence was presented at trial that initially
Jason told law enforcement investigators he may have arrived at his
parent’s home on the day of the murder at 10:45 a.m. or 10:50 a.m. Jason
called his sister to tell her he found Shirley at 11:08 a.m. Using Jason’s
earliest estimate of 10:45 a.m. that would allow him twenty-eight minutes
before calling his sister. Although Jason argues that he did not have time
to drive from Cargill to his parents’ home and shoot his mother before
calling his sister, a fact finder could reasonably decide to find otherwise
based on the timeline Jason first told law enforcement.
Furthermore, the plaintiffs presented evidence to support their
theory that Shirley was still alive when Jason arrived at the farm. Bill
testified he could tell Shirley had fed the pigs and put new sawdust down
recently before her murder because the pigs were still eating when he
arrived and had not yet played in the new bedding like they typically
would. An expert testified that rigor mortis begins to take place in fifteen
to thirty minutes after death in the small muscles of the neck. He stated
that if a person lifted another by the neck after rigor mortis had set in the
person would notice a stiffness and the head would come up like a board.
Bill testified that when he got to the house he went to Shirley and picked
her head up and when he let go of her head, it went on its own back to the
floor, thus leading a factfinder to reasonably believe rigor mortis had not
yet set in Shirley’s neck. Furthermore, the plaintiffs put on evidence that
accounted for Bill’s whereabouts during the time the murder could have
occurred thus leading a juror to conclude he could not be responsible.
Evidence: Both the plaintiffs’ and defendant’s experts who testified
to the condition of the crime scene agreed that the scene at the house was
consistent with a staged burglary. The plaintiffs’ expert additionally
testified it was likely Shirley knew her killer. When Jason’s expert was
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asked whether anything led him to believe the burglary was staged, he
replied, “[F]or someone with my background and experience, you look at
these things -- and this is red flags right off the bat.” Shirley’s purse was
in plain view and undisturbed. Guns, money, pill bottles, and a blank
checkbook were left behind at the crime scene. The only item discovered
to be missing from the home was the .270 Remington rifle. Law
enforcement recovered shell fragments from the crime scene and presented
evidence that the fragments had been fired from a high-powered rifle like
the one missing from the home. For comparison, agents were able to
recover bullet fragments from an earthen bank where Bill had previously
fired the missing rifle. A DCI agent testified that the fragments that killed
Shirley matched the make and model of the missing rifle. Additionally,
law enforcement investigators were not able to find any shell casings from
the shooting. An expert testified that the absence of shell casings indicates
the murderer made sure to pick them up so they could not be matched
back to a particular weapon.
In support of the plaintiffs’ case, Bill testified that the missing rifle
had been stored in a gun safe in the basement of the home. A lab report
determined that Jason’s fingerprints were found on the gun safe even
though he had told law enforcement he never touched it. Evidence was
also presented that Jason had access to the gun in the time leading up to
the murder. Bill testified that Jason and his family normally came over
once or twice a week, but the week leading up to the murder they came
over six nights in a row. He further stated that each night Jason asked
him and Shirley what their plans were for the next day. Bill told Jason
the night before the murder that he would be in Eddyville the next morning
unloading his truck of grain.
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The plaintiffs additionally argued that Jason made statements to
others that show he knew information about his mother’s death that only
the killer could know or that were designed to create an alibi. For example,
Jason told the 911 operator that Shirley looked like she had been on the
floor for two hours. An officer testified that when he arrived at the scene
Jason said she had been shot. To the contrary, Bill testified that when he
arrived at the house, he could not tell Shirley had been shot. Jason’s
brother, Billy, testified that on the day of the murder Jason asked him if
he thought the killer “had to rack another round.” Evidence was presented
that a bolt-action rifle like the type law enforcement believed was used to
kill Shirley is the only type of weapon where this is necessary. The
plaintiffs argued to the jury that on the day of the murder, no one besides
the killer could have known that a bolt-action rifle was used.
Motive: The plaintiffs were not required to prove Jason had a motive
to kill his mother, only to prove by a preponderance of the evidence that
he intended to shoot her. However, the plaintiffs did present evidence to
support their theory that Jason had a financial motive to kill his mother.
A witness testified Jason told him he could not farm with his father
because of his mother. Bill also testified to a conversation he and Shirley
had with Jason two months before her death. In the conversation, Jason
asked why he did not own any ground, which prompted Bill to offer to sell
him some land. Bill explained that Shirley was visibly angry by Jason’s
response that he did not want that particular ground because of deer.
The plaintiffs argued several pieces of evidence at trial that could
lead a juror to believe Jason was struggling financially. For example, the
plaintiffs presented Jason’s Wells Fargo bank account statement for June
of 2015, which showed he had assets of approximately $600 and total
liabilities of approximately $180,000. They also showed Jason had $82.34
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in his Wells Fargo bank account on June 18, and $42.04 in his farm’s
bank account on June 19. The plaintiffs further presented evidence that
Jason owed $566,000 of principal on his line of credit in June and was
less than $10,000 from reaching his maximum on the line of credit.
Evidence also showed Jason listed his adjusted gross income was a loss of
more than $180,000 in 2014 on his federal tax return. He reported to the
Iowa Department of Revenue that his farm lost $190,000 that same year.
Additionally, Jason testified he knew he would inherit all of his parents’
land. The land was worth at least several million dollars. For these
reasons, we conclude that the evidence was sufficient at trial for a
reasonable mind to find by a preponderance of the evidence that Jason
intentionally shot his mother.
D. First Motion to Vacate the Judgment or Grant a New Trial.
Jason claims the district court erred in denying his first petition to vacate
the judgment or grant a new trial on the basis of newly discovered
evidence. The majority of Jason’s newly discovered evidence consisted of
law enforcement’s investigative summaries of interviews with people who
purported to have information that Shirley was killed by burglars looking
for drugs. Jason argues that the newly discovered evidence points to
entirely different parties as responsible for murdering Shirley.
Additionally, he claims it shows law enforcement was biased against him
and did a faulty investigation. The newly offered evidence also included
photographs of Jason assembling the gun safe and audio recordings of
Bill’s interviews with law enforcement regarding rigor mortis.
A court may vacate a final judgment or order, or grant a new trial
due to “[m]aterial evidence, newly discovered, which could not with
reasonable diligence have been discovered and produced at the trial, and
19
was not discovered within the time for moving for new trial under rule
1.1004.” Iowa R. Civ. P. 1.1012(6).
A party seeking a new trial on such grounds must
demonstrate three things: (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) (citing In re D.W.,
385 N.W.2d 570, 583 (Iowa 1986)). “[T]he term ‘newly discovered evidence’
refers to facts existing at trial time of which the aggrieved party was then
excusably ignorant.” Wilkes v. Iowa State Highway Comm’n, 186 N.W.2d
604, 607 (Iowa 1971).
The district court determined that the evidence offered by Jason was
discovered after trial and could not have been discovered earlier. However,
the district court stated it was debatable whether the evidence was
material. It noted that much of the evidence offered was hearsay evidence
that could only be used to impeach witnesses and would not be used
substantively. Additionally, the district court noted that some of the
evidence Jason wished to offer was not material to the outcome of the case
because of its inconsistency with other known facts. The district court
ultimately concluded that even if the newly discovered evidence were
material it would not change the outcome because virtually all of the
evidence was inadmissible hearsay. Jason contends the district court
erred by finding that the newly discovered evidence was inadmissible
hearsay and not material. He further argues the district court erred by
failing to consider the effect of the plaintiffs’ discovery violations in ruling
on his petition for relief.
20
First, we address Jason’s contention that the question before a trial
court ruling on a petition to vacate the judgment or grant a new trial due
to newly discovered evidence is whether it is possible the new evidence
might have affected the outcome of the trial. Jason relies largely on a 1921
Iowa Supreme Court case that states if newly discovered evidence
“presents material facts germane to the issue in controversy, which,
considered with the evidence presented on the trial, might cause a jury to
take the other view, then the motion should be sustained.” Henderson v.
Edwards, 191 Iowa 871, 873, 183 N.W. 583, 584 (1921) (citing Dobberstein
v. Emmet County, 176 Iowa 96, 155 N.W. 815 (1916)). Jason notes that
the “might” standard was upheld in a 1956 case, Farmers Insurance
Exchange v. Moores, 247 Iowa 1181, 1190, 78 N.W.2d 518, 524–25 (1956).
However, that case goes on to clarify that “[i]t is also elementary that a new
trial should not be granted for newly discovered evidence unless a different
result . . . is reasonably probable.” Id. at 1190, 78 N.W.2d at 525 (quoting
Loughman v. Couchman, 243 Iowa 718, 720, 53 N.W.2d 286, 288 (1952)).
Our caselaw in more recent years has consistently followed the standard
that a movant for a new trial based on newly discovered evidence must
demonstrate that the new evidence will probably change the result if a new
trial is granted. See, e.g., State v. Uranga, 950 N.W.2d 239, 243 (Iowa
2020); Tullis v. Merrill, 584 N.W.2d 236, 242 (Iowa 1998); Benson, 537
N.W.2d at 762; Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 804 (Iowa
1992); In re D.W., 385 N.W.2d at 583; Yoder v. Iowa Power & Light Co., 215
N.W.2d 328, 335 (Iowa 1974); State v. Compiano, 261 Iowa 509, 518, 154
N.W.2d 845, 850 (1967). That is the standard we follow today.
Second, we address whether the evidence Jason offers in the first
petition to vacate the judgment “is newly discovered and could not, in the
21
exercise of due diligence, have been discovered prior to the conclusion of
the trial.” Benson, 537 N.W.2d at 762.
The showing of diligence required “is that a reasonable effort
was made.” The defendant is “not called upon to prove he
sought evidence where he had no reason to apprehend any
existed.” However, a defendant “must exhaust the probable
sources of information concerning his case; he must use that
of which he knows, and he must follow all clues which would
fairly advise a diligent man that something bearing on his
litigation might be discovered or developed.”
Uranga, 950 N.W.2d at 243 (citations omitted) (quoting Compiano, 261
Iowa at 519, 154 N.W.2d at 850). The district court determined that the
DCI interview summaries were newly discovered and could not have been
produced at trial. The court reasoned that “[a]lthough defense counsel
had reason to know other persons were implicated in the murder, the
actual evidence of those allegations was not available to Jason at the time
of trial.” The district court also concluded that the evidence could not have
been discovered earlier by Jason because he did not have access to DCI’s
entire investigative file.
Exculpatory evidence that is unavailable, but known, at the time of
trial is not newly discovered evidence. Jones v. Scurr, 316 N.W.2d 905,
910 (Iowa 1982). We are not convinced Jason exhausted all probable
sources of information concerning his case. An audio recording of a
meeting on November 28, 2017, with Jason’s counsel and Detective Reed
Kious shows Detective Kious told them information about his other
investigations on other people. He stated,
It’s always the story of either Joel [Followill], or his brother
John, or some other person that’s involved in drugs in some
way, burglarized Shirley’s house. The most believable one
that I heard came from Adam Glover, and usually whenever
somebody approaches me, and I won’t say usually, it is always
when somebody approaches me, there’s something they want
in return which is common for people in that lifestyle . . . . this
Adam Glover said that he heard that Shirley had confronted
22
the burglars with the gun and that a struggle ensued, she was
shot, and that the second shot was done to finish her off. And
that this Joel Followill was part of it.
Detective Kious went on to explain several reasons why he did not find this
story believable. Jason argues this excerpt shows it was reasonable to
accept Detective Kious’s representation that one person had come forward
with this story, that it was not credible, and to move on. He also claims
in his brief that “no one provided Jason with the names of the Followills.”
We disagree. This recording shows that Jason’s counsel was aware before
trial that law enforcement had been approached more than once with
information on Shirley’s death and it is always a story involving Joel or
John Followill or someone else burglarizing the Carter’s home.
Jason asserts there was no point in attempting to obtain the DCI file
because DCI was clearly unwilling to provide the investigation file as
evidenced by its motion to quash the plaintiffs’ first subpoena. However,
after Jason was provided with a portion of DCI’s investigatory file, he made
no attempt to subpoena DCI for the balance of its investigative file or
specifically for interviews on other suspects. Jason claims he exercised
due diligence when his counsel later asked Detective Kious in the
November 28 meeting “if there was anybody else” other than Joe Tony
Vrban and the Followill brothers.
Due diligence in the context of newly discovered evidence requires
that the movant exhaust all probable sources. The above question posed
to Detective Kious does not rise to that standard. Courts must require a
movant to show timely due diligence in the discovery of new evidence,
otherwise “newly discovered evidence might be withheld as trial strategy
to obtain a second trial if needed.” Compiano, 261 Iowa at 518, 154 N.W.2d
at 850. Because Jason did not make any attempts to obtain more
23
information from law enforcement or investigate leads for himself, he did
not exercise due diligence in timely discovering the evidence he now offers.
Third, we address Jason’s argument that the district court abused
its discretion in finding the evidence was not material because of its
inconsistency with other facts of the case. In determining that some of the
evidence was immaterial because of its inconsistency with the evidence at
trial, the district court noted that the experts for both the plaintiffs and for
Jason expressed the opinion that the person who shot Shirley was not a
burglar and the home was staged to look like a burglary. The court went
on to explain in its order on Jason’s petition to vacate the judgment that
virtually every story provided by Jason pointing to other suspects was
based on burglars going to Shirley’s home looking for prescription drugs
and ending up killing her. Thus, the district court determined the newly
discovered evidence was inconsistent from the evidence introduced at trial
in support of Jason’s theory of the case. In State v. Smith, we upheld a
district court’s decision that newly discovered evidence would not have
changed the outcome of the trial when the evidence “was not consistent
with defendant’s theory of the case.” 573 N.W.2d 14, 21–22 (Iowa 1997)
(explaining that defendant’s theory at trial was that he was present in the
park where the shooting occurred but did not fire a gun, yet the newly
discovered evidence consisted of testimony that he was not seen at the
park at the time of the shooting). Some of the stories are also clearly
inconsistent with the crime scene. They state Shirley was beaten or put
in a pond before her death yet there were no signs of this on her body.
The district court did not abuse its discretion in determining the
statements Jason wished to offer to prove that burglars were responsible
for Shirley’s death that were clearly not true were not material to the
outcome in the trial. However, the district court ultimately denied Jason’s
24
petition to vacate the judgment or grant a new trial because it determined
the new evidence would not change the outcome. Therefore, we will focus
our review there.
Lastly, Jason argues the district court erred in determining the new
evidence would not change the outcome of the trial because most of it is
inadmissible hearsay. Hearsay is a statement that a declarant makes not
while testifying at the current hearing or trial and a party offers into
evidence to prove the truth of the matter asserted in the statement. Iowa
R. Evid. 5.801. Hearsay is normally inadmissible. Id. r. 5.802. The vast
majority of Jason’s newly discovered evidence consists of law
enforcement’s summaries of interviews of people who allege they spoke
with others who spoke with the alleged killers. Jason claimed in his
petition to vacate the judgment that the newly discovered evidence points
to entirely different parties as responsible for murdering Shirley. The
statements in the interview reports are clearly hearsay if they are being
offered to prove the truth of the matter asserted in the statements.
Jason’s claim that the reports meet the residual hearsay exception
is not persuasive. The residual exception to the hearsay rule provides:
a. In general. Under the following circumstances, a
hearsay statement is not excluded by the rule against hearsay
even if the statement is not specifically covered by a hearsay
exception in rule 5.803 or 5.804:
(1) The statement has equivalent circumstantial
guarantees of trustworthiness;
(2) It is offered as evidence of a material fact;
(3) It is more probative on the point for which it is
offered than any other evidence that the proponent can obtain
through reasonable efforts; and
(4) Admitting it will best serve the purposes of these
rules and the interests of justice.
25
Id. r. 5.807(a). The first prong of rule 5.807 is not satisfied because the
statements contained in the interview reports Jason offers do not have
“equivalent circumstantial guarantees of trustworthiness” for several
reasons. The district court noted in its order denying Jason’s petition to
vacate the judgment that the information gleaned from the interviews is
widely unreliable and involves multiple levels of hearsay:
Despite claims by persons purportedly having spoken
directly with people involved in the murder, neither the DCI
nor the Marion County Sheriff’s Office were able to corroborate
these allegations. Based on the evidence presented, the Court
finds most of the individuals claiming to have information
about Shirley Carter’s death were themselves incarcerated in
the Marion County Jail or facing criminal charges and looking
“to make a deal.” Much of the information investigators
received from these individuals was incomplete, inconsistent
with facts garnered from the crime scene, or refuted by
ancillary interviews with people named during the initial
interview.
The district court went on to say,
One individual repeatedly maintained he had or could
get information about Shirley Carter’s murder. Facing his
own criminal charges, this “informant” wanted the charges
against him dismissed in exchange for what he knew or, at
the very minimum, substantially reduced. He told
investigators he had spoken with one of the murderers, he
claimed there were two, and one of the alleged killers admitted
to involvement in the murder. Upon further questioning, he
back-peddled, saying the killer he spoke with did not “tell me,
tell me” about committing the murder, but inferred
involvement in the killing. This same “informant” told law
enforcement the killers took Shirley down to the pond where
they attempted to scare her in what can only be described as
a “water boarding” incident. However, Shirley’s body was not
wet nor damp when found and the medical examiner’s report
does not suggest water was in any way related to her death.
While this individual probably told the most implausible
stories, his style was typical of others who sought to improve
the person’s own situation by providing so-called information
about Shirley Carter’s murder.
Upon our review of the interview summaries, we agree that most of the
information disclosed in them is uncorroborated, incomplete, refuted by
26
others, or implausible based on the known facts of Shirley’s death. Even
where the person speaking to law enforcement was noted as seeming
earnest, their statement often involved at least another level of hearsay,
meaning they heard it from someone who heard it from someone else. The
statements do not meet the reliability requirement for the residual
exception.
Furthermore, we are not persuaded that the seemingly large number
of reports pointing to other suspects alone would change the outcome of
the trial. Jason’s first petition to vacate the judgment included law
enforcement’s interview summaries with approximately fourteen different
people who suspected or heard the Followill brothers were involved in
Shirley’s death.2 However, some of the people that spoke with law
enforcement had the same person as their source of information. They all
appear to be from the same friend group or acquaintances of each other.
For these reasons, the district court did not abuse its discretion in
concluding the interview summaries would not have changed the outcome
of the trial.
Jason additionally argues that the statements in the investigative
reports are not hearsay because they would not be offered to prove the
truth of the matter stated. Rather, Jason claims that he would offer the
evidence to show law enforcement’s investigation was faulty or failed
because it failed to interview certain leads. He also contends the evidence
shows law enforcement’s extreme bias and tunnel vision by ignoring
exculpatory evidence and unwillingness to consider other suspects. The
court noted that Jason’s new evidence shows law enforcement did in fact
2Some of the interviews occurred after judgment was rendered in the civil trial and
thus are not “newly discovered evidence” which existed at the time of trial. See Benson,
537 N.W.2d at 762–63 (considering subsequent events as newly discovered evidence only
in extraordinary cases in which an “utter failure of justice will unequivocally result”).
27
consider other suspects. The new evidence mostly consisted of law
enforcement’s summaries of interviews with people alleged to have
information on other suspects, including polygraph results from someone
Jason had a dispute with prior to Shirley’s murder. Additionally, the
district court again emphasized that virtually all of the statements on other
suspects are varied stories of a burglary gone wrong, yet the evidence
presented by the plaintiffs as well as Jason in the civil trial was that the
burglary was staged. Ultimately, the district court concluded law
enforcement did a thorough investigation and “at some point, continuing
to interview individuals involved in the drug world with no first-hand
knowledge and whose story will contravene the facts from the crime scene
becomes problematic.” We are persuaded that the district court did not
abuse its discretion in determining the evidence, if offered to show law
enforcement’s bias or faulty investigation, probably would not change the
outcome at a new trial.
Finally, we address Jason’s claim that the district court erred by
failing to consider the effect of the plaintiffs’ nondisclosure of material
evidence. Jason alleges in the petition to vacate the judgment that the
plaintiffs were aware of exculpatory evidence before the civil trial and did
not disclose it in discovery. He points to his civil deposition where the
plaintiffs’ counsel asked him about the Followill brothers and a woman
purported to have information. He also points to a Washington Post article
that states the plaintiffs’ counsel said they “had long been aware of the
other suspects from early in the investigation but said they were
discounted as possibilities based on ‘a complex analysis of lots of factors’ ”
and quotes the plaintiffs’ counsel as stating that “[t]here is nothing of
substance new to our side in this motion.” Iowa Man Accused in Mother’s
Death Points to Other Suspects, AP News, (May 31, 2018),
28
https://apnews.com/238963d3c54d412782e0d8b5d5b923ab#:~:text=Io
wa%20man%20accused%20in%20mother%E2%80%99s%20death%20po
ints%20to,another%20suspect%20shot%20her%20during%20a%20farm
house%20robbery [https://perma.cc/FQ8K-HBGK]. Jason also claims
the plaintiffs did not disclose photos Bill had in his basement of Jason
assembling the gun safe.
Contrary to Jason’s brief, the district court directly addressed the
alleged discovery violations in its ruling and order on Jason’s motion to
enlarge or amend its ruling on his petition to vacate the judgment.
Ultimately the district court found the plaintiffs’ counsel did not act
improperly because Jason never made any effort to pursue any of the
alleged discovery violations by filing a motion or requesting a hearing. See
Iowa R. Civ. P. 1.517(1) (“A party, upon reasonable notice to other parties
and all persons affected thereby, may move for an order compelling
disclosure or discovery . . . to compel a discovery response.”).
Apart from the fact that Jason never filed anything on the alleged
discovery violations, it is clear Jason was aware of other suspects before
the civil trial from an audio recording of an interview between Jason’s
counsel and a detective on Shirley’s case. The detective discussed the two
names repeatedly brought up as Shirley’s killers in Jason’s newly
discovered evidence and the name of another person supposedly with
information. The detective further told Jason’s counsel that his
investigation on other suspects is always a story of someone involved in
drugs burglarizing Shirley’s house. Thus Jason’s claims that he had no
information about other suspects, was prejudiced by the plaintiffs’
nondisclosure, and would have completely changed his trial strategy but
for their nondisclosure cannot be given much weight. Furthermore, the
plaintiffs’ counsel’s statement to the press is not proof of a discovery
29
violation, rather it is an acknowledgement that they were aware of other
suspects (just as Jason was) and did not believe there was anything new
of substance in the law enforcement interview summaries that Jason was
now offering.
The district court concluded that the photos of Jason and the gun
safe would not change the result in a civil case, because the significance
of Jason’s fingerprints on the gun safe was not that they were there
without a reasonable explanation. An expert testified that Jason’s
fingerprints were consistent with an assembly of the gun safe. Bill also
maintained at trial that he believed Jason had given it to him as a gift in
the early 2000s. Rather, the significance of the fingerprint evidence was
that Jason had told law enforcement in an interrogation shortly after the
murder he had never touched the gun safe and did not even know his
parents owned one at the time of the murder. The district court
additionally determined that the recording offered by Jason of Bill’s
discussions with law enforcement regarding rigor mortis would not change
the result in a civil case. In the recording, Bill questions why law
enforcement is focusing on the family and states Shirley’s body was in
rigor mortis. The district court reasoned that the recording would not
change the outcome of the case because Bill is not an expert on rigor
mortis, he lacks the training to offer an opinion on the subject, and he
sounded upset and frustrated. We cannot conclude the district court
abused its discretion in refusing to vacate the judgment or grant a new
trial on the basis of these alleged discovery violations or the newly
discovered evidence Jason offered.
E. Motion to Recuse. Jason filed a motion for recusal of the
district court judge who presided over the civil trial and Jason’s first
petition to vacate the judgment. At the time he filed the motion for recusal,
30
Jason’s motion to enlarge the district court’s order denying his first
petition to vacate the judgment and his second petition to vacate the
judgment were pending before the same judge. Jason’s motion for recusal
is based on two events he argues show prejudicial bias against him. Jason
provided an affidavit of an attorney that states she spoke to the judge
following Jason’s acquittal from his criminal trial and the judge told her
“Jason Carter was guilty as sin.” Jason provided another affidavit of an
individual that states he attended portions of Jason’s civil trial and during
the trial witnessed the judge, the plaintiffs’ attorneys, and the county
attorney who charged Jason with murder speaking alone in the library of
the courtroom without Jason’s attorneys present.
“A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned . . . .” Iowa
Code of Judicial Conduct R. 51:2.11(A); see also Iowa Code
§ 602.1606(1)(a) (2020) (“A judicial officer is disqualified from acting in a
proceeding . . . if . . . [t]he judicial officer has a personal bias or prejudice
concerning a party.”). The Iowa Code of Judicial Conduct, Terminology,
defines impartiality as “absence of bias or prejudice in favor of, or against,
particular parties or classes of parties, as well as maintenance of an open
mind in considering issues that may come before a judge.” Actual
prejudice must be shown before recusal is necessary, and speculation is
not sufficient. State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). The test
is “whether reasonable persons with knowledge of all facts would conclude
that the judge’s impartiality might reasonably be questioned.” State v.
Mann, 512 N.W.2d 528, 532 (Iowa 1994). The party seeking
disqualification must show that the judge’s “alleged bias and prejudice
must stem from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from participation
31
in the case.” State v. Bear, 452 N.W.2d 430, 435 (Iowa 1990); see also
State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982) (determining judge’s
statement that defendant “was guilty of something” was based on
reviewing the minutes of testimony and was not from an extrajudicial
source); State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976) (“[O]nly personal
bias or prejudice, as distinguished from judicial predilection, constitutes
a disqualifying factor.”).
Jason has not offered any evidence that the judge’s alleged bias
stems from an extrajudicial source. Additionally, Jason does not claim
any biased conduct of the judge during the course of the trial, the hearing
on his first petition to vacate the judgment, or in the rulings on Jason’s
posttrial motions. The district court’s order denying the motion provides
in part:
Any opinion formed by this Court was formed only after
hearing the evidence. This Court received no extrajudicial
information and had no contacts with persons that influenced
its ability to be impartial. Further, this Court prides itself on
being even-handed with all parties during any proceeding and
Jason Carter’s trial was no exception.
The district court further noted that at the time of the alleged statement
to the lawyer who provided an affidavit, the district court had already ruled
on Jason’s first petition to vacate the judgment, which was prior to the
criminal trial.
Jason additionally has not alleged any prejudice that has resulted
to him from the conversation the judge is alleged to have had in the
courtroom library with the plaintiffs’ counsel and the county attorney. See
State v. Lemburg, 257 N.W.2d 39, 46 (Iowa 1977) (determining the record
did not show any basis to disqualify the judge when ex parte discussions
were limited to matters of security at trial and did not concern a pending
or impending proceeding). The judge stated in her order:
32
[T]his court would not and did not discuss anything about the
pending civil case without involving both sides. The rules do
not prohibit talking to attorneys ever, just in those situations
where there is discussion of a pending or impeding matter
before the court. That did not occur here. Defendant’s
attempt to imply a conspiracy among Plaintiffs’ counsel, the
county attorney, and this Court is unsupported by any facts
and farfetched.
“[T]here is as much obligation for a judge not to recuse when there
is no occasion for him to do so as there is for him to do so when there is”
because of the “ever mounting sea of litigation.” Mann, 512 N.W.2d at 532(first quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (per
curiam); then quoting Brody v. President & Fellows of Harvard Coll., 664
F.2d 10, 12 (1st Cir. 1981) (per curiam)). The civil trial lasted two weeks
and the proceedings on Jason’s first petition to vacate the judgment lasted
two and a half days. A new judge assigned to the case would cause
additional delay. The judge’s rulings and orders filed in this case were
thorough and based in the law. We decline to hold that the district court
abused its discretion in denying Jason’s motion to recuse.
F. Second Petition to Vacate the Judgment or Grant a New
Trial. The final issue we must decide is whether the district court erred
by dismissing Jason’s second petition to vacate the judgment based on
newly discovered evidence because it was filed outside the one-year
limitation in Iowa Rule of Civil Procedure 1.1013.3 Jason’s second petition
to vacate the judgment was filed under Iowa Rules of Civil Procedure
1.1012 and 1.1013. The official comments to Rule 1.1013 state:
Rule 253 [now 1.1013] limits the time for filing the petition
under Rule 252 [now Rule 1.1012]. Such time is
jurisdictional; the court being without power to entertain a
3“A petition for relief under rule 1.1012 . . . must be filed and served in the original
action within one year after the entry of the judgment or order involved.” Iowa R. Civ. P.
1.1013(1).
33
petition filed thereafter: Kern v. [Woodbury County], 234 Iowa
1321, 14 N.W.2d 687. Nothing can extend the time.
Iowa R. Civ. P. 1013 cmt. (first and second alterations in original). Jason
claims the district court erred in refusing to apply doctrine of equitable
tolling to his petition to vacate the judgment. Equitable tolling is
appropriate in particular cases, but policy underpinnings of certain
statutes, such as jurisdictional statutes of limitations, weigh against
application of equitable tolling doctrines. Mormann, 913 N.W.2d at 569
(citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451–53 (7th Cir.
1990)) (explaining that the Iowa Civil Rights Act does not have underlying
policy rationales that cut against the application of equitable tolling unlike
other certain statutes).
Jason points to Sorenson v. Sorenson, 254 Iowa 817, 119 N.W.2d
129 (1963) for support that the court may apply doctrine of equitable
tolling to his second petition to vacate the judgment. In Sorenson, we
explained that courts of equity may grant new trials independently of the
statute of limitations set out in statutes and rules like rule 1.1013 when
the grounds for the motion were not discovered within the year and the
fraud authorizing the granting of a new trial was extrinsic or collateral to
the matter directly involved in the original case. Id. at 825, 134. The
difference between Jason and the movant in Sorenson is that the movant
there did not, and could not, file his motion to vacate the decree under
rule 1.1013. Sorenson, 254 Iowa at 824–25, 119 N.W.2d at 133–34
(“Defendant cannot bring himself within the provisions of rules [1.1012]
and [1.1013] because he did not act within the one-year limit therein
provided . . . .”). Instead, the movant sought to vacate or modify the decree
upon equitable grounds. Id. We noted in City of Chariton v. J. C. Blunk
Construction Co., 253 Iowa 805, 821, 112 N.W.2d 829, 837 (1962), that we
34
have a string of cases that treat a petition to set aside a judgment on the
ground of fraud not discovered until past the one-year period allowed by
rules 1.1012 and 1.1013 as being a collateral attack on the judgment. We
stated that “it is collateral only in that it is not brought in the original
proceeding but is an independent action in equity.” Id. Thus, those cases
are likewise distinguishable from the present case since Jason did not
bring an independent action in equity.
We made it clear in In re Marriage of Fairall, 403 N.W.2d 785, 788
(Iowa 1987), that a petition filed under rules 1.1012 and 1.1013 must be
filed within a year:
District court authority in these situations cannot be
conferred by consent, waiver, or estoppel. Accordingly, we
have stated: “Jurisdiction does not attach, nor is it lost, on
equitable principles. It is purely a matter of statute.” It
follows that a petitioner seeking relief under rule [1.1012]
bears the burden to follow the prescribed procedural steps of
rule [1.1013] necessary to keep his or her post-judgment
rights alive.
We thus hold that to invoke the power of the district
court to correct, vacate, or modify a final judgment or order
through a rule 252 petition, the petition must be filed and the
notice must be served within one year as required by rule 253.
(citations omitted) (quoting BHC Co. v. Bd. of Review, 351 N.W.2d 523, 526
(Iowa 1984)). We affirm this holding and conclude the district court lacked
jurisdiction to hear Jason’s second petition for relief because it was not
filed within one year of the judgment as required by rule 1.1013.
IV. Conclusion.
For these reasons we affirm the judgment against Jason Carter.
AFFIRMED.
All justices concur except Appel and Mansfield, JJ., who take no
part.