                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1474
                                Filed July 19, 2017


IN THE MATTER OF THE ESTATE OF JERRY DEAN MOHR, DECEASED,

JONATHON LANGERMAN,
    Appellant.

________________________________________________________________

      Appeal from the Iowa District Court for Osceola County, Nancy L.

Whittenburg, Judge.




      A biological son of a decedent appeals after the probate court overruled

his motion to strike the amended report and inventory filed by the administrator of

the decedent’s estate removing the son from the list of “heirs at law” on the

report. AFFIRMED.




      John L. Sandy of Sandy Law Firm, Spirit Lake, for appellant.

      Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellee Joan Mohr.

      Mark C. Cord III of Moore, Heffernan, Moeller, Johnson & Meis, L.L.P.,

Sioux City, for appellee Pamela Mohr.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

         Jerry Mohr, a resident of Arizona, died intestate in August 2011. At the

time of his death, Jerry owned a one-half interest in 160 acres of farmland in

Osceola County, Iowa. This land is the subject of ancillary administration in

Osceola County.1 Based on the establishment of paternity in Arizona, the Iowa

estate’s administrator, Joan Mohr, Jerry’s sister-in-law, filed a probate inventory

listing Jonathon Langerman as an heir to the Iowa estate.

         Pamela Mohr, Jerry’s surviving spouse, filed in Iowa district court a

petition for declaratory judgment seeking a declaration that Jerry’s biological son,

Jonathon Langerman, is not an heir within the meaning of Iowa Code section

633.222 (2011). In 2014, this court affirmed the district court’s ruling denying the

petition for declaratory judgment. See Mohr v. Langerman, No. 13-1422, 2014

WL 5243364, at *1-3 (Iowa Ct. App. Oct. 15, 2014). Though we agreed with

Pamela that section 633.222 requires proof of both paternity and recognition to

establish heirship, Pamela, as the petitioner seeking the declaration, had the

burden of proving the negative of either proposition to prevail. See id. at *1-2, *4.

Because an Arizona court had already established Jerry is Langerman’s

biological father, Pamela had to prove Jerry did not recognize Langerman as his

child. See id. at *3-4. Because Pamela did not meet that burden, we affirmed

the denial of her declaratory-judgment petition.      See id. at *6-10.    Pamela’s

application for further review was denied by the Iowa Supreme Court.

         Thereafter, the administrator of Jerry’s estate filed a motion to amend the

estate’s inventory seeking to delete Langerman from the inventory.              The

1
    See Iowa Code §§ 633.500-.504 (2016).
                                       3


administrator stated Langerman had only been listed on the original inventory “to

provide notice” to him of the proceedings. The administrator pointed out that

neither this court nor the declaratory-judgment court explicitly found that

Langerman is Jerry’s heir; rather, it was only determined that Pamela failed to

prove Langerman is not an heir.     The administrator also noted Langerman’s

answers to interrogatories stated he had no personal recollection of seeing or

speaking to Jerry. Because the original inventory listing Langerman as an heir

was not conclusive of the fact Langerman is Jerry’s heir, see Iowa Code

§ 633.367, and because there had been no explicit finding Langerman is Jerry’s

heir in either the declaratory-judgment action or in our opinion on appeal, the

administrator requested the court grant her motion to amend to delete

Langerman from the inventory. Resistances and replies and other motions were

made by the parties.      Following a hearing, the probate court granted the

administrator’s motion.   In its March 23, 2016 ruling, the court noted the

administrator’s motion did not require the court to make a final determination on

the status of Langerman as an heir entitled to take; instead, the motion merely

required the court to consider whether the administrator had adequate

justification to warrant amending the inventory. The court found the proffered

additional information from Langerman’s answers to interrogatories “adequate in

conjunction with all known facts and circumstances to justify the removal of [the

administrator’s] designation of Langerman as an heir.”       But the court also

recognized that Langerman was free to challenge the determination once

amendment was made.
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      More filings by the parties followed.      Specifically, Langerman filed a

motion to reconsider and a motion to stay pending interlocutory appeal. The

motion to reconsider was resisted. The district court overruled the motion to

reconsider and sustained the motion to stay the proceedings.

      In the meantime, the administrator filed the amended report and inventory

removing Langerman from the inventory’s list of heirs. Langerman then filed an

objection to the amended inventory. Langerman stated his “right to be listed in

the inventory has already been adjudicated and determined by [the district court

in its declaratory-judgment ruling] in this matter and afﬁrmed by the Court of

Appeals, with the Supreme Court denying review in the case” and argued the

administrator was “collaterally estopped from relitigating these issues by filing

and amended inventory.” He affirmatively stated he is Jerry’s biological son and

was “recognized as such by his father and, as such, is entitled to distributive

rights to his father’s estate.” He requested an evidentiary hearing on the matter.

      After his motion to reconsider was denied, Langerman filed a motion for

ruling on his pending objections to the amended inventory, a motion to strike the

amended inventory, a motion for evidentiary hearing, and a notice he was

withdrawing his request for stay of proceedings.       On August 25, 2016, the

probate court entered its ruling overruling Langerman’s motion to strike, among

other things. The court explained:

             Having read the motions, the resistance, the reply to the
      resistance and the objection, the court finds that the pending
      motions filed by Langerman . . . have already been presented to the
      court and argued in previous hearings and rulings have been filed
      thereupon. The court has also entertained and ruled upon
      Langerman’s previously filed motion to reconsider [the court’s
      March 23, 2016 ruling, which sustained the administrator’s motion
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      to amend the estate’s inventory]. Langerman’s request of March
      30, 2016 for a stay of these proceedings to appeal the court’s
      previous decision sustaining the amendment to the inventory was
      granted with Langerman subsequently withdrawing the request for
      stay and foregoing the appeal of the court’s decision regarding the
      prior motions. Now Langerman attempts to renew before the court
      the issue of the amendment to the inventory, which has been
      determined and reconsidered after argument and opportunity of
      each party to come before the court and fully present each party’s
      position. Langerman disagreed with the court’s rulings and moved
      the court to stay these proceedings pending his appeal of the
      court’s decisions. The court granted his request. Thereafter, for
      unknown reasons, Langerman asked for the stay of these
      proceedings to be withdrawn, and the court granted that request as
      well.
               ....
               In short, Langerman’s present motions are an effort to re-
      litigate matters that have already been litigated fully and fairly
      before this court. His motions are untimely and not consistent with
      the Iowa Rules of Procedure. Further, the present motions are
      repetitive and redundant attempts to re-litigate and improperly
      resurrect matters that have already been determined by the court.
      Langerman’s recourse was to take an interlocutory appeal of the
      court’s decisions with which he disagreed or file timely, relevant
      motions. He was given the opportunity of a stay for the purpose of
      pursuing an appeal, and he determined not to proceed. The court
      may not, under the Iowa Rules of Civil Procedure, allow him now to
      re-litigate matters that have already been decided by the court
      simply because he disagrees with the court’s decisions. To do
      otherwise would be inconsistent with the rules of civil procedure.
      For the reasons stated, the pending motions . . . are overruled and
      the resistance sustained.

      Langerman sought interlocutory appeal of the probate court’s denial of his

motion to strike the amended inventory.       The Iowa Supreme court granted

Langerman’s application “[t]o the extent the August 25, 2016 order is

interlocutory in nature.” The administrator and Pamela Mohr both filed motions to

dismiss the appeal, asserting Langerman’s appeal was untimely, among other

things. The supreme court ordered that those motions be submitted with the

appeal. The court then transferred the appeal to this court.
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       In this appeal, Langerman does not claim the administrator in some way

violated the probate court’s ruling sustaining the administrator’s motion to amend.

Rather, he asserts the probate court erred in failing to apply principles of res

judicata/claim preclusion when it refused to strike the amended inventory that

deleted him as an heir, “even though his status as an heir on the inventory had

already been determined by a final judgment in a separate lawsuit involving the

same parties and affirmed by the Court of Appeals.” Langerman cites an earlier

ruling by the probate court—made by a different judge prior to the filing of our

opinion—stating the declaratory-judgment court’s ruling implicitly, if not explicitly,

determined “Langerman remains an heir of this estate” and “shall continue to be

considered as an heir” unless it was “later determined to the contrary from the

appeal now pending.”        Additionally, referencing section 633.364, Langerman

asserts his answers to interrogatories and the rulings in the declaratory-judgment

action did not result in new information previously unknown by the administrator

to justify the amendment.

       In response, the administrator and Pamela (hereinafter collectively

“appellees”) requested the appeal be dismissed, asserting Langerman failed to

timely file the application for interlocutory appeal. They also argue Langerman

failed to preserve error concerning issue preclusion.        The administrator also

argues the declaratory-judgment ruling had no preclusive effect on her since she

was not an adversary in the declaratory-judgment action and there was no

determination that Langerman is an heir within the meaning of section 633.222.

Pamela similarly asserts the declaratory-judgment ruling did not preclude the
                                            7


administrator from amending the inventory, since there was no determination that

Langerman is an heir.

       Assuming without deciding Langerman’s application for interlocutory

appeal was timely filed, we find no error in the probate court’s determination that

Langerman’s motion to strike should be overruled.2                 First, because the

challenged ruling here—the probate court’s ruling on Langerman’s motion to

strike—does not address Langerman’s res judicata or collateral estoppel claims,

those issues are not preserved for our review.          See Estate of Gottschalk by

Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 585 (Iowa 2017) (“A party

must ordinarily raise an issue in the district court and the district court must

decide that issue before we may decide it on appeal. . . . “[I]f the court does not

actually rule on the claim asserted, a party must seek an expanded ruling to

preserve it.”). But even if they were preserved, we do not find those principles

apply here to prevent the administrator from amending the estate’s inventory.


2
  Langerman argues our review is for errors at law because his claims here are based
upon the court’s ruling upon legal issues, citing Hansen v. Central Iowa Hospital Corp.,
686 N.W.2d 476, 480 (Iowa 2004). Appellees assert our review is de novo since the
underlying action is in equity and Langerman’s motion to strike does not fall into any
categories listed in Iowa Code section 633.33 to exclude it from an equitable review.
See In re Estate of Whalen, 827 N.W.2d 184, 187 (Iowa 2013) (“Probate actions are
tried in equity, except in specific delineated circumstances not applicable here.”); see
also Iowa R. App. P. 6.907. We note that in ordinary civil actions, “courts have
considerable discretion to allow amendments at any point in the litigation,” even
permitting amendments “to conform to the proof offered at trial,” and in those cases, the
court’s decision should only be reversed “if it has abused that discretion.” Baker v. City
of Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). Because a de novo review is generally
more favorable to the appellant, and appellees are not opposed, we use that standard
here; nevertheless, we note that we would reach the same conclusion using the other
standards of review. See, e.g., In re Hagan’s Will, 14 N.W.2d 638, 641 (Iowa 1944)
(“However, we reach the same conclusion, whether the cause is triable de novo or
merely reviewable on errors of law.”); Jonathan B. Warner, Reviewing Standards of
Review, 60 Res Gestae, no. 5, Dec. 2016, at 38 (“De novo review is the ideal standard
for a party who has raised an issue on appeal. Under this standard of review, the court
on appeal gives no deference to the judgment of the trial court on the issue raised.”).
                                           8


Langerman’s entire argument arises from his belief that the declaratory-judgment

court implicitly, if not explicitly, determined Langerman is Jerry’s heir within the

meaning of section 633.222. That is not the case.

       Pamela’s failing to prove Langerman is not an heir did not establish that

Langerman is an heir.3 The declaratory-judgment court expressly found only that

the “weight of the evidence does not persuade the court one way or another. . . .

The circumstantial evidence of [Jerry’s] life does not establish by clear and

convincing evidence whether or not Jerry . . . recognized [Langerman].” Thus,

the court entered no judgment declaring Langerman is Jerry’s heir. No court

since has ruled Langerman is Jerry’s heir. We concluded Pamela did not carry

her burden of proving that Jerry did not recognize Langerman. Mohr, 2014 WL

5243364, at *10.       The probate court, in subsequent rulings, did not rule

Langerman is Jerry’s heir. In its March 23, 2016 ruling on the administrator’s

motion to amend inventory, the court specifically stated the “Motion to Amend the

Initial Inventory does not require the Court to make a final determination on the

status of Langerman as an heir entitled to take. That question remains open and

subject to subsequent challenge.”        In an October 18, 2016 ruling, the court

concluded Langerman “has not proven himself an heir in Iowa.” Because the

issue has not been decided and no judgment declaring Langerman to be Jerry’s

heir was ever entered, the principles of res judicata do not apply to preclude the



3
  Langerman’s reasoning commits the fallacy of argumentum ad ignorantiam, which is
“the mistake that is committed whenever it is argued that a proposition is true simply on
the basis that it has not been proved false, or that it is false because it has not been
proved true.” See Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250,
1257 (11th Cir. 2007) (citing Irving M. Copi & Carl Cohen, Introduction to Logic 93 (8th
ed. 1990)); Douglas Lind, Logic & Legal Reasoning 290-91 (2nd ed. 2007).
                                        9

amendment to the inventory. See Clarke Cnty. Reservoir Comm’n v. Robins,

862 N.W.2d 166, 177 (Iowa 2015) (“Issue preclusion, a form of res judicata, is

based on a prior judgment.     So, too, is claim preclusion.” (citation omitted)).

Given there was not a finding that Langerman is Jerry’s heir in or after the

declaratory-judgment litigation, and that section 633.364 permits the inventory to

be amended when additional information becomes available to knowledge of a

personal representative, we find no error or abuse of discretion by the probate

court’s determination that Langerman’s motion to strike should be overruled.

After all, the administrator was only doing what she was permitted by the court to

do.

      It is unclear why Langerman did not, in the declaratory-judgment action,

ask the court to make an affirmative determination that he is Jerry’s heir. We can

only speculate that he did not want to shoulder the burden of proof. His failure to

take on that burden does not help his cause here. See, e.g., Medtronic, Inc. v.

Mirowski Family Ventures, LLC, 134 S. Ct. 843, 850 (2014) (assuming a similar

outcome in a declaratory-judgment matter where “the form of the action could

create postlitigation uncertainty about the scope of the patent” at issue in the

case). Nevertheless, as the probate court pointed out, Langerman’s deletion

from the inventory does not preclude him from establishing he is an heir—

specifically that he was recognized by Jerry as his son. See, e.g., In re Estate of

Evjen, 448 N.W.2d 23, 25 (Iowa 1989) (“For an illegitimate child to be considered

an heir, recognition need not be universal or so general and public as to have

been known by all. . . .   If the father denies paternity, as opposed to openly

acknowledging it, recognition is less likely to be found. . . . Here, there is no
                                        10

evidence that [the decedent] ever denied paternity.” (citations omitted)); In re

Wulf’s Estate, 48 N.W.2d 890, 894 (Iowa 1951) (“It is generally held the

recognition need not be ‘universal or so general and public as to have been

known by all’; need not be continuous, ‘covering the whole period up to and

including the time of the death of the putative father.’” (citation omitted)); In re

Clark’s Estate, 290 N.W. 13, 30 (Iowa 1940) (“A general and notorious

recognition does not necessarily mean a continuous recognition covering the

whole period up to and including the time of the death of the putative father. A

recognition clearly shown to have been once deliberately and publicly made,

made under circumstances that reveal no apparent motive to conceal, meets the

requirements of the statute.”). Langerman filed an objection to the amended

inventory. There, he asserted he “is the biological son of Jerry Dean Mohr and

recognized as such by his father and, as such, is entitled to distributive rights to

his father’s Estate.” It does not appear that the probate court’s ruling and order

of August 25, 2016, addresses Langerman’s objection to the amended inventory.

That matter is left for another day.

       For the foregoing reasons, we affirm the probate court’s ruling overruling

Langerman’s motion to strike the administrator’s amendment to the inventory.

       AFFIRMED.
