                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0093
                            Filed January 23, 2020


KURT FAHRNEY and BELA ANIMAL LEGAL DEFENSE AND RESCUE,
     Plaintiffs-Appellees,

vs.

ANIMAL RESCUE LEAGUE OF IOWA,
     Defendant-Appellant,

and

THE CITY OF DES MOINES, IOWA and JAMES BUTLER,
     Defendants.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      The Animal Rescue League appeals the denial of its motion for sanctions

against plaintiff Bela Animal Legal Defense and plaintiff’s attorney. REVERSED

AND REMANDED.




      Jason M. Casini of Whitfield & Eddy, PLC, Des Moines, for appellant.

      Jaysen McCleary, Des Moines, for appellees.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
                                         2


TABOR, Judge.

       The Animal Rescue League (ARL) appeals the district court’s denial of its

motion for sanctions against plaintiff Bela Animal Legal Defense and Rescue

(Bela) and plaintiff’s counsel.   The ARL argues the district court abused its

discretion by declining to impose sanctions based on their perceived futility in

deterring unprofessional conduct on this record.      Because Iowa Rule of Civil

Procedure 1.413(1) commands courts to impose sanctions when they find

violations of the rule on frivolous filings, we reverse and remand for further

proceedings.

       I.      Facts, Prior Proceedings, and Appellate Jurisdiction

       This case originated as Bela’s challenge to the seizure of Kurt Fahrney’s

dog, Diesel, in 2015, after the animal bit the neck of a four-year-old child. Bela

contested the actions of the city of Des Moines in declaring Diesel to be a

“dangerous dog” under its ordinance. Bela also alleged the ARL violated the

constitution in performing animal control for the city. The district court dismissed

Bela’s claims in November 2016. Bela appealed, but our supreme court dismissed

the case for failure to prosecute. Procedendo issued in April 2018.

       While the appeal was pending, Bela continued to file pleadings in the district

court. In late July 2018, the district court denied Bela’s pending motions. The

court found Bela’s arguments “unsupportable” and declared the court was “without

authority to reach back behind the November 2016 final order to create a different

outcome more favorable to Bela.” After addressing Bela’s barrage of claims, the

district court aptly summarized the situation:
                                         3


               When this prolix record is reduced to its essence, Bela wants
        a do-over. The vehicles the applicable rules of civil and appellate
        procedure provide for possibly obtaining a do-over were not followed
        by Bela. The court does not have the authority to consider or provide
        what Bela wants. The court’s November 9, 2016 final order is the
        final word.

        The ARL euthanized Diesel two days after that ruling. Several days later,

Bela applied for a rule to show cause alleging the city and ARL should be held in

contempt. The city resisted the application, contending no stays remained in

place. The district court denied Bela’s application in January 2019. Bela filed a

cross appeal challenging that denial. In July 2019, the supreme court dismissed

that cross appeal based on Bela’s failure to comply with appellate filing deadlines.

        Meanwhile, the ARL moved for sanctions against Bela and Bela’s attorney

Jaysen McCleary under rule 1.413(1). The ARL asserted, “Mr. McCleary’s filings

have gone well beyond lacking factual support or legal merit; they are being filed

for an ‘improper purpose’ to harass the ARL and employees.” The ARL continued:

        What is most troubling, however, is Mr. McCleary’s improper tactic
        of using those filings to spread his inaccurate and inflammatory
        narrative about this case through social media with the intent to
        harass the ARL, incite public outrage and solicit donations for his
        organization, Plaintiff Bela Animal Legal Defense and Rescue.

The ARL attached several exhibits showing Bela’s Facebook posts about the case.

The ARL supplemented its motion three times with more exhibits showing Bela’s

social media campaign against the city and the ARL, including a post which

referred to ARL’s attorney as “dishonest” and an “enemy of innocent animals and

civil rights!”
                                            4


      The district court denied the ARL’s motion for sanctions in a November 2018

order. That order characterized ARL’s request and the court’s response in these

paragraphs:

              The ARL seeks sanctions against [Bela] for two separate sets
      of activities: The first set of activities refers to filings made by [Bela]
      which the ARL contends contain misstatements of fact and law and
      mischaracterization of evidence and rulings. The second set of
      activities refers to social media posts by [Bela] that occurred after the
      court entered its final order in this matter on July 31, 2018.
              Sanctions are designed to deter unprofessional conduct and
      thereby improve professional performance. First Am. Bank v. Fobian
      Farms, Inc., 906 N.W.2d 736, 745 (Iowa 2018). Sanctions should be
      awarded only when the court possesses the authority to impose them
      and, when imposing them, would make a difference in the sanctioned
      party’s future professional conduct.
              The first set of actions falls within the scope of the court’s
      sanctioning authority under the Iowa Rules of Professional Conduct.
      However, the court can conceive of no sanction under this record
      that would affect or deter unprofessional conduct in the future or have
      any positive impact on future professional competence. Addressing
      such issues is properly within the power of a different authority.
              The second set of actions fall outside the scope of the
      sanctioning authority provided by the Iowa Rules of Professional
      Conduct.

The ARL asked the district court to reconsider. The court declined. So the ARL

filed a notice of appeal in January 2019.

      In May 2019, Bela moved to affirm, which the supreme court denied. In

August and again in October, Bela moved to dismiss the appeal, which the

supreme court denied. Because Bela did not meet its appellate filing deadlines,

the supreme court ordered the appeal to proceed on ARL’s briefing.

      In December 2019, the supreme court transferred this appeal to our court.

After that transfer, Bela again moved to dismiss the appeal as interlocutory.1 We


1Bela’s motion also requested a chance to file a responsive brief. We declined to
allow additional briefing because the supreme court denied that same request
                                          5


issued an order declining to dismiss the appeal before issuing our opinion. That

order noted: “It appears counsel for Bela filed a similar motion to dismiss on

October 25, 2019, which was denied by the Iowa Supreme Court. To the extent

that the instant motion raises any different claims, this court will consider those

claims to be submitted along with the issues raised by the ARL.”

       We now address Bela’s claim we lack subject matter jurisdiction to consider

this appeal. After a close reading, we do not find the substance of Bela’s motion

to dismiss to be any different from the motion denied by our supreme court in

October 2019. We are not free to countermand a decision of our supreme court.

See generally State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).

       But even if the motion to dismiss raised fresh issues, we would deny it. First,

Bela cites no authority in support of its position that the appeal is interlocutory.

Second, the district court had jurisdiction to consider the ARL’s motion for

sanctions as a collateral issue. See Schettler v. Iowa Dist. Ct. for Carroll Cty., 509

N.W.2d 459, 464 (Iowa 1993); Bd. of Water Works Trustees v. City of Des Moines,

469 N.W.2d 700, 702 (Iowa 1991) (explaining that rulings on collateral claims are

separately appealable as a final judgment); see also Mathias v. Glandon, 448

N.W.2d 443, 445 (Iowa 1989) (holding “appeal is the appropriate procedure for

challenging the denial of a motion for sanctions”). Third, even if ARL did not have

a direct appeal, dismissal is not the proper remedy. See Iowa R. App. P. 6.108.

We decline to dismiss this appeal.



before transferring the case to us. See generally Fobian Farms, 906 N.W.2d at
746 (discussing law-of-the-case doctrine and binding nature of previous rulings on
the later proceedings and appeal).
                                           6


       II.    Scope and Standards of Review

       We review a district court’s decision whether to impose sanctions under

rule 1.413(1) for an abuse of discretion. Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267,

272 (Iowa 2009). “Of course, we will still correct erroneous application of the law

in the exercise of that discretion.” Weigel v. Weigel, 467 N.W.2d 277, 280 (Iowa

1991) (discussing rule formerly numbered 80(a)).

       In pertinent part, rule 1.413(1) states:

       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.

“We are mindful [this rule] directs the court to impose a sanction when it finds a

violation.” Mathias, 448 N.W.2d at 445. Thus, “[t]he question presented to the

district court under [this rule] is not whether a court shall impose sanctions when it

finds a violation—it must; instead, the question is how to determine whether there

was a violation.” Id. (emphasis added).

       III.   Analysis

       In its motion for sanctions, the ARL alleged Bela and attorney McCleary

“violated Rule 1.413(1) by making multiple, repeated misstatements of both fact

and law” in pleadings and motions filed between November 2016 and July 2018.
                                              7


The sanction motion asserted Bela’s counsel filed those documents with the

“improper purpose” of harassing the ARL and its employees.

       In denying ARL’s motion, the district court did not determine whether Bela

or attorney McCleary violated rule 1.413(1) in their motions and pleadings.

Instead, the court found it had “sanctioning authority” under the rules of

professional conduct for the court filings but not the social media posts. The court

declined to exercise that authority because it could “conceive of no sanction under

this record” that would deter future unprofessional conduct.

       On appeal, the ARL contends the district court’s failure to exercise its

sanctioning authority constituted an abuse of discretion. The ARL urges that

courts have a duty to impose sanctions under rule 1.413(1) if they find a litigant or

lawyer misused the judicial system by filing documents for an “improper purpose.”

See Mark S. Cady, Curbing Litigation Abuse and Misuse: A Judicial Approach, 36

Drake L. Rev. 483, 501 (1987).

       The ARL also takes issue with the district court’s deflection of the issue to

“a different authority” such as the Attorney Disciplinary Board “in the hope that it

may subsequently address it.”          While the professional conduct rules may be

relevant to determining a violation of rule 1.413(1), according to the ARL, the

source of the court’s authority and responsibility to impose sanctions for improper

litigation tactics is the civil procedure rule itself.

       That reading of rule 1.413(1) finds solid support in our case law. It is true,

as the district court noted, that sanctions “are designed to deter unprofessional

conduct.” See Fobian Farms, 906 N.W.2d at 745. Indeed, on top of deterrence,

a more aspirational goal of rule 1.413(1) is to ensure a high degree of
                                          8

professionalism in the practice of the law. Id. at 746. But the district court was

mistaken in believing “[s]anctions should be awarded only . . . when imposing them

would make a difference in the sanctioned party’s professional conduct.”2

       The application of sanctions under this rule requires “first, a finding of a

violation. Once a violation is found, sanctions are mandatory.” K. Carr v. Hovick,

451 N.W.2d 815, 818 (Iowa 1990) (citing Mathias, 448 N.W.2d at 445). But circling

back to the starting gate—whether a violation occurred is a matter for the district

court to decide and involves “matters of judgment and degree.” Mathias, 448

N.W.2d at 446.

       The district court skipped the first step. It falls to that court to assess the

disputed pleadings and motions in light of the requirements of rule 1.413(1). To

trigger a violation, neither the party nor the attorney needs to act with malice or

subjective bad faith. Barnhill, 765 N.W.2d at 273. The rule also targets negligence

and, to some extent, professional incompetence. Id.        The court must measure

compliance with the rule “by an objective standard of attorney performance.”

Cady, 36 Drake L. Rev. at 501–02 (setting out multi-factor tests for deciding

whether attorney has made a reasonable inquiry into the facts and the law).



2 Sanctions serve the objectives of both specific and general deterrence. See Dull
v. Iowa Dist. Ct., 465 N.W.2d 296, 298 (Iowa Ct. App. 1990) (citing Cooter & Gell
v. Hartmarx, 496 U.S. 384, 404 (1990)). So even if the district court did not have
confidence the sanctions would impress the particular litigant or lawyer in this case,
consistent enforcement of the rule sets expectations for the greater legal
community. In addition, “[s]anctions are meant to avoid the general cost to the
judicial system in terms of wasted time and money.” Barnhill, 765 N.W.2d at 273.
But see Fobian Farms, 906 N.W.2d at 759 (Wiggins, J. dissenting) (suggesting
imposing sanctions based on the parties’ filings would not deter similar conduct
because the parties pursued claims pro se that their attorney failed to advise them
were frivolous).
                                         9


       Because the district court’s analysis was incomplete, we reverse the ruling

denying ARL’s motion for sanctions and remand for further proceedings consistent

with this opinion. On remand, the district court should first determine whether Bela

or attorney McCleary violated rule 1.413(1). “[B]efore sanctions are imposed, the

alleged offender be afforded: (1) fair notice and (2) an opportunity to be heard.”

Hovick, 451 N.W.2d at 817–18. If any violations occurred, the court should order

appropriate sanctions to deter future misconduct, to compensate the “victims” of

the misconduct, and to protect the integrity of the judicial system. See Barnhill,

765 N.W.2d at 276–78 (discussing rule’s twin aims of deterrence and

compensation of the opposing party). We do not retain jurisdiction.

       REVERSED AND REMANDED.
