                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0589
                            Filed November 27, 2019


MARVIN MITCHELL,
    Plaintiff-Appellant,

vs.

TAMMY CHRISTENSEN,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



       Marvin Mitchell appeals the denial of his motion to vacate the order granting

summary judgment for Tammy Christensen. AFFIRMED.



       John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellant.

       Anita Dhar Miller and Benjamin T. Erickson of Grefe & Sidney, P.L.C., Des

Moines, for appellee.



       Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ. May, J. takes

no part.
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DOYLE, Judge.

         Marvin Mitchell appeals the denial of his motion to vacate the order granting

summary judgment for Tammy Christensen on his tort claims. Mitchell contends

“newly discovered” material warrants vacation of the summary judgment order.

Because the material Mitchell provided to the court is not “newly discovered

evidence” we affirm the district court’s denial of Mitchell’s motion.

         I. Background Facts and Proceedings.

         Mitchell filed a petition against Christensen, Louis Bonacci, and Erik Fisk,1

alleging claims of conversion of an engagement ring, theft of Mitchell’s mail and

identity,    defamation,    publication    of     defamatory   materials,   wrongfully

communicating with Mitchell “in a manner calculated to intimidate or annoy him,

including threats of violence,” and prosecution of “false charges of domestic

abuse” with the intent to, among other things, “use the legal process to harass”

and “inflict emotional distress.” During a contentious discovery process, Mitchell

requested production of documents including copies of text messages from

Christensen’s cellphone account.          Christensen objected.    Mitchell moved to

compel. Christensen was ordered to produce, among other things, all emails, and

text messages from January 1, 2016 to November 2017 that contained Mitchell’s

name. Alleging Christensen violated the order, Mitchell renewed his motion to

compel. Christensen was again ordered to produce the records she received from

her cellphone carrier. She failed to do so.




1   Fisk was later dismissed from the suit.
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       Christensen moved for summary judgment. In resisting the motion, Mitchell

alleged that Christensen made false statements in her deposition and failed to

comply with his discovery requests. After a hearing, the district court granted

summary judgment for Christensen noting, in part,

              The Court has considered Mitchell’s complaint that
       Christensen has not provided certain text messages in discovery.
       Mitchell does not, however, explain what evidence those text
       messages would likely contain. More to the point, Mitchell does not
       explain how those text messages would create fact questions
       regarding Mitchell’s claims. Nor has Mitchell submitted the affidavit
       required by Rule 1.981(5). Therefore, Mitchell’s complaint about
       Christensen’s texts does not provide a basis to refuse summary
       judgment.

The court dismissed all claims against Christensen.

       Thereafter, Bonacci reached a settlement with Mitchell. Bonacci then gave

a deposition in which he testified that during the litigation with Christensen, he was

aware that Christensen refused to provide documents to her counsel for discovery

purposes and provided false documentary evidence.              Based on Bonacci’s

testimony, Mitchell petitioned to vacate or modify the summary judgment on the

grounds Christensen practiced irregularity or fraud in obtaining the judgment and

upon newly discovered evidence. See Iowa R. Civ. P. 1.1012(2), (6) (2018).

Christensen resisted, arguing any alleged fraud was intrinsic fraud2 and Mitchell

produced no newly discovered evidence in support of his petition. Mitchell then


2 In order to vacate a judgment under rule 1.1012(2), a party must show the
opposing party engaged in fraud extrinsic to the judgment. See In re Marriage of
Cutler, 588 N.W.2d 425, 429 (Iowa 1999). “Extrinsic fraud pertains to the manner
in which the judgment was procured.” In re Marriage of Kinnard, 512 N.W.2d 821,
823 (Iowa Ct. App. 1993). While a judgment may be vacated under rule 1.1012(2)
based on extrinsic fraud, it cannot be vacated based on intrinsic fraud. Phipps v.
Winneshiek Cty., 593 N.W.2d 143, 146 (Iowa 1999). “[I]ntrinsic fraud inheres in
the issues submitted to the court.” Id.
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supplied the court with copies of Christensen’s telephone records, including

twenty-two pages of text messages between Bonacci and Christensen covering

the period February 23 through February 28, 2018.3

      Following a hearing, the district court denied Mitchell’s petition on two

grounds. The court held “that the matters alleged would be in the way of an

intrinsic fraud and, therefore, pursuant to Phipps v. Winneshiek County, 593

N.W.2d 143 (Iowa 1999) the judgment cannot be vacated.” The court also held

“no newly discovered evidence has been provided to the Court showing the

outcome would have been different. No evidence has been produced that is

material to the issues in the case and is not merely cumulative and impeaching

that would have changed the outcome.” Mitchell appeals.

      II. Scope and Standard of Review.

      We review the district court’s refusal to vacate judgment for correction of

errors at law. See In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999). We

will reverse only if the district court has abused its discretion. In re Adoption of

B.J.H., 564 N.W.2d 387, 391 (Iowa 1997). The court has a large amount of

discretion in determining whether to vacate a prior judgment, but the exercise of

discretion must have some support in the record. Id.; In re Marriage of Kinnard,

512 N.W.2d 821, 823 (Iowa Ct. App. 1993).




3Sometime after Bonacci’s deposition, Bonacci furnished some 300 pages of text
messages to Mitchell. The 22 pages furnished to the court were a “random
sampling” of the 300 pages.
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       III. Analysis.

       Did the district court properly deny the petition to vacate in finding that

Mitchell failed to provide newly discovered evidence?4 To vacate a judgment

based on newly discovered information under rule 1.1012(6), a party must show:

       (1) the evidence is newly discovered and could not, in the exercise
       of due diligence, have been discovered prior to the conclusion of the
       trial; (2) the evidence is material and not merely cumulative or
       impeaching; and (3) the evidence will probably change the result if a
       new trial is granted.

Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995). Mitchell strikes out on

all three requirements.

       “Under Iowa law, ‘newly discovered evidence’ sufficient to merit a new trial

is evidence which existed at the time of trial, but which, for excusable reasons, the

party was unable to produce at the time.” See id. at 762-63. Mitchell submitted

twenty-two pages of text messages to the court. The text messages did not exist

at the time of the summary judgment hearing as they all postdated the hearing. So

they do not meet the definition of “newly discovered evidence.”

       Secondly, upon our examination of the text messages we, like the district

court, find that none of the messages are material to the issues in the case. The

text messages relevant to the litigation consisted mainly of speculation between

Christensen and Bonacci discussing when and how the court would decide on the




4 On appeal Mitchell abandons his rule 1.1012(2) fraud argument made to the
district court. He now asserts, “under the facts and results of the present case,
there was no ‘extrinsic’ or ‘intrinsic’ fraud practiced.” Since the district court
properly denied the petition to vacate on the newly discovered evidence issue, we
need not discuss the fraud issue.
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February 2018 summary judgment hearing.          The messages did not concern

Mitchell’s allegations.

       Thirdly, we find nothing in the submitted text messages that would probably

change the result if the summary judgment is set aside and a trial granted.

       So we agree with the district court that Mitchell did not present any newly

discovered evidence material to the issues in the case showing the outcome would

have been different. The district court properly exercised its discretion in denying

Mitchell’s motion to vacate. We affirm.

       AFFIRMED.
