Alex Crabb v. Iowa District Court in and for Polk County

IN THE COURT OF APPEALS OF IOWA

No. 13-0814
Filed October 15, 2014

ALEX CRABB,
Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT IN AND FOR POLK COUNTY,
Defendant-Appellee.
________________________________________________________________

Certiorari to the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.

An attorney challenges the district court’s ruling sanctioning him for

representations in court filing. WRIT ANNULLED.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for

appellant.

Debra Ann Hockett-Clark, West Des Moines, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. McDonald,

J., takes no part.
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VAITHESWARAN, P.J.

We are asked to decide whether a district court abused its discretion in

sanctioning Alex Crabb, an attorney, for making misleading statements in a court

filing.

I. Background Facts and Proceedings

The facts underlying the sanctions ruling are lengthy but straightforward.

Troy Dowell pled guilty to several crimes, including neglect of a dependent. The

sentencing court ordered his imprisonment and restrained him from having any

contact with his three children. At sentencing, Dowell “signed off” on the criminal

no contact order, which was to remain in effect until July 15, 2013.

Following Dowell’s imprisonment, his wife, Charity, petitioned for a

dissolution of the marriage. She sought and obtained a decree granting her

request for sole custody and physical care of the children. Charity and her

children subsequently moved to Australia.

In the ensuing years, Dowell filed several documents contesting the

criminal no contact order and dissolution decree. Those documents bear on

Crabb’s knowledge or presumed knowledge of facts precipitating the sanctions

order.

Dowell first moved to modify or terminate the no contact order. He alleged

Charity was to obtain counseling for the children and, once the counselor found it

appropriate, he would be allowed to at least have telephone and written contact

with the children. He also asserted the Department of Human Services was

ready to approve contact. Following a contested hearing, the district court

denied the motion, finding an absence of support for any of Dowell’s claims.
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Dowell next petitioned to vacate the dissolution decree and obtained

permission to have the petition served on Charity by publication. Charity did not

see the published notice and did not file a responsive pleading. The district court

entered a default order vacating certain portions of the dissolution decree

including “legal and physical custody of the minor children.” The order stated the

parties were “placed back in the position they were in prior to the entry of the

decree.” Charity did not receive a copy of the order at the time of its filing.

Dowell then moved for an order to have the children returned to Iowa.

The district court found an absence of facts alleging the children were in danger

and noted Dowell was still incarcerated and in no position to assume custody of

the children. The court denied the motion.

Meanwhile, Dowell’s parents, who had previously reported the children

missing, learned they were at the Los Angeles airport getting ready to board a

flight to Australia with their mother. Dowell’s parents enlisted the assistance of

attorney Crabb to file an application for rule to show cause as to why Charity

should not be held in contempt. The application, filed in the name of Dowell,

alleged in pertinent part:

10. The Petitioner has wrongfully withheld visitation or any
contact between the children and [Dowell] and has withheld any
information regarding the whereabouts of the minor children.

The application further alleged:

13. The U.S. State Department requested the Court enter a
temporary Order by a Court in Iowa confirming that the Petitioner is
unlawfully withholding the children from the Respondent pursuant
to the Order Vacating Judgment, and that the Petitioner and
children not be allowed to leave the country until complying with the
Order to Vacate instructing Petitioner that custody must be re-
Iitigated.
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The application sought an order

prohibiting the Petitioner from removing the children from the
United States, an Order commanding the Petitioner to appear and
answer the allegations of this Application, an Order commanding
the U.S. State Department and local authorities to prevent the
Petitioner from taking the children out of the United States and for
such other and further relief as the Court deems just and equitable
in the premises.

Although the application contained a Polk County caption, Crabb obtained an ex

parte order in Warren County setting the matter for hearing in Polk County and

“commanding the U.S. State Department and local authorities to prevent [Charity]

from taking the children out of the country until [Charity] has appeared and

answered to the allegations of this Petition.” Authorities served the order at the

airport and prevented Charity and the children from boarding the plane.

Charity retained an Iowa lawyer, who sought an expedited hearing on the

contempt application. The parties informally resolved the underlying issues and

Crabb dismissed the application.

This did not end the matter. On its own motion, the district court

scheduled a hearing to determine the appropriateness of sanctions against

Crabb. The scheduling order stated: “Pursuant to Iowa Rule of Civil Procedure

1.413 the Court orders the attorneys for the parties to appear in Courtroom 412

of the Polk County Courthouse on April 3, 2013 at 10:30 a.m.” The order was

issued two months before the hearing date.

At the hearing, the court articulated “a number of concerns” relating to the

application for rule to show cause and afforded Crabb an opportunity to explain

the filing. Following the hearing, the court concluded Crabb violated rule 1.413

“by knowingly making false and misleading statements to the Court in the
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Application and in certifying by his signature that he had made a reasonable pre-

filing inquiry into the facts when he had not.” The court focused on Crabb’s

paragraph ten assertion that Charity “wrongfully” and “unlawfully” withheld

visitation and contact between Dowell and the children “when in fact there was a

valid criminal no contact order in place at that time.” The court cited Crabb’s

conceded knowledge of the no contact order at the time he filed the application.

The court also relied on Crabb’s paragraph thirteen allegation that the U.S. State

Department requested an Iowa court order confirming Charity’s unlawful

withholding of the children. The court cited Crabb’s admission to the absence of

“proof of any such request” and his failure to verify the accuracy of the statement.

The court ordered Crabb to pay a sanction of $9684.05 covering Charity’s

expenses and attorney fees. Crabb filed a motion for rehearing and to

reconsider, which the court denied.

The Iowa Supreme Court granted Crabb’s petition for writ of certiorari,

stayed the enforcement of the sanction order, and transferred the case to this

court for disposition. Crabb contends the district court (1) did not properly notify

him of the “nature and scope” of the sanctions hearing and (2) failed to conduct a

“mandatory analysis” for imposing sanctions. Our review of the district court’s

sanctions order is for an abuse of discretion. Barnhill v. Iowa Dist. Ct., 765

N.W.2d 267, 272 (Iowa 2009).

II. Notification of the Hearing

“[B]efore sanctions are imposed, the alleged offender must be afforded:

(1) fair notice and (2) an opportunity to be heard.” K. Carr v. Hovick, 451 N.W.2d

815, 817-18 (Iowa 1990). Crabb contends he “was caught off-guard and, as
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indicated by the transcript, stumb[led] over himself in an effort to present record

on issues for which he was not noticed.” To the contrary, the order scheduling

the sanctions hearing unambiguously stated the hearing pertained to rule 1.413.

That rule states, in part:

Counsel’s signature to every motion, pleading, or other paper shall
be deemed a certificate that: counsel has read the motion,
pleading, or other paper; that to the best of counsel’s knowledge,
information, and belief, formed after reasonable inquiry, it is well
grounded in fact and is warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law;
and that it is not interposed for any improper purpose, such as to
harass or cause an unnecessary delay or needless increase in the
cost of litigation. . . . If a motion, pleading, or other paper is signed
in violation of this rule, the court, upon motion or upon its own
initiative, shall impose upon the person who signed it, a
represented party, or both, an appropriate sanction, which may
include an order to pay the other party or parties the amount of the
reasonable expenses incurred because of the filing of the motion,
pleading, or other paper, including a reasonable attorney fee. The
signature of a party shall impose a similar obligation on such party.

Iowa R. Civ. P. 1.413(1). By referencing the rule, the court could not have been

clearer as to the import of the hearing. Notably, the court afforded Crabb two

months to prepare for the hearing. If Crabb was confused about the “nature and

scope” of the upcoming hearing, he had ample opportunity to seek clarification.

He did not.

At the hearing, the court repeatedly asked Crabb to communicate his

version of events, first requesting a “professional statement,” then asking him to

explain paragraphs ten and thirteen of his application, and finally seeking “some

guidance” on why his filing should not result in sanctions. The court stated, “[I]f I

am missing something, this is your opportunity, please, to explain to the Court
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what I am missing. Maybe you want to take a moment to think about it while

[Charity’s attorney] speaks.”

Crabb had more than a fair “opportunity to appear and argue” regarding

the imposition of the sanction. See K. Carr, 451 N.W.2d at 818. We find no

violation of the obligation to afford Crabb notice and a hearing.

III. Mandatory Analysis

Mathias v. Glandon, 448 N.W.2d 443, 446 (Iowa 1989), exhorts a court to

consider “all relevant circumstances” in determining whether an attorney

reasonably inquired into the facts and law alleged in a court filing. Included are

several factors for consideration. Mathias, 448 N.W.2d at 446. Crabb

characterizes the factors as part of a “mandatory analysis” that must precede any

imposition of sanctions. In fact, neither Mathias nor subsequent opinions require

a court to address each of the enumerated factors. The court must simply

measure compliance with rule 1.413 by an objective standard of reasonableness

under the circumstances. Barnhill, 765 N.W.2d at 272-73. The court did so here.

The court’s meticulous analysis is supported by prior court orders

spanning five years, Dowell’s actions and admissions, and Crabb’s admissions at

the sanctions hearing. With respect to the assertions in paragraph ten of the

application, all concerned knew Dowell was the subject of a criminal no contact

order which had yet to expire at the time Crabb filed his application. A cursory

perusal of the record also would have uncovered Dowell’s initial ratification of the

no contact order and his later unsuccessful attempt to modify the order on the

same grounds articulated by Crabb at the sanctions hearing. Because the no

contact order was still viable and categorically precluded Dowell from having any
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contact with his children, there could be no “wrongful[]” withholding of visitation or

contact, as alleged in paragraph ten of Crabb’s application for rule to show

cause. The paragraph was misleading and supported the imposition of

sanctions.

Crabb’s reliance on what he characterizes as the complexities of the case

is misplaced. The dissolution decree afforded Charity sole custody and physical

care of the children, giving her every right to take them to Australia. While the

decree was later vacated, Charity did not learn of this fact until she was served

with the application for rule to show cause. But, even if she was presumed to

have known of the order vacating the decree at an earlier date, the order clarified

she had the same rights to the children as she enjoyed before the decree was

entered, rights that did not preclude travel to Australia. Significantly, Dowell

earlier moved to have the children returned to Iowa and lost the motion.

Reasonable inquiry on Crabb’s part would have uncovered the motion and ruling

and would have confirmed the absence of any “wrongful” withholding, as alleged

in paragraph ten.

As for paragraph thirteen, Crabb conceded he did not know for a fact

whether the State Department asked the Iowa courts to enter a temporary order

finding an unlawful withholding of the children. He nonetheless made the

unverified assertion which, with the unsupported denial-of-contact allegation in

paragraph ten, prompted authorities to halt Charity’s legitimate exit from the

country and forced her to incur unanticipated expenses and attorney fees.
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We conclude the district court did not abuse its discretion in sanctioning

Crabb for the representations in his application for rule to show cause. We

uphold the sanctions ruling.

WRIT ANNULLED.