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Finken v. West

Court of Appeals of Iowa

January 24, 2018

MARK E. FINKEN, Plaintiff-Appellee,
v.
DOUGLAS J. WEST, an individual, and ESTATE OF DOUGLAS M. WEST, Defendants-Appellees, and DOMINA LAW GROUP PC LLO, Intervenor-Appellant.

         Appeal from the Iowa District Court for Harrison County, Kathleen A. Kilnoski, Judge.

         An intervenor challenges the denial of its petition to intervene filed pursuant to Iowa Code section 639.60 (2016).

          Christian T. Williams and Brian E. Jorde of Domina Law Group P.C. L.L.O., Omaha, Nebraska, for appellant.

          Matthew G. Sease of Kemp & Sease, Des Moines, for appellee Estate of West.

          Heard by Doyle, P.J., and Tabor and McDonald, JJ.

          MCDONALD, Judge.

         This matter comes before the court on appeal from an interlocutory order denying Domina Law Group's petition to intervene in an auxiliary writ-of-attachment proceeding. The proceeding is at law, see Markley v. Keeney, 54 N.W. 251, 251 (Iowa 1893), this court's review is for the correction of legal error.

         I.

         The relevant circumstances are as follows. In March 2016, Mark Finken, a fifty percent owner of Western Marketing Associates Corporation, sued the estate of Douglas West. West was formerly Finken's business partner and fifty percent owner of Western Marketing. Finken asserted two claims against the estate: one claim for contribution on a joint promissory note Finken and West delivered during the course of operating Western Marketing; and one claim for conversion of property. As an auxiliary proceeding to his suit, Finken filed an application for prejudgment writ of attachment pursuant to Iowa Code chapter 639 (2016). In the application, Finken sought to garnish funds owed the estate as the result of a judgment entered in favor of West in a prior suit in which West sought judicial dissolution of Western Marketing. The district court granted Finken's application for prejudgment writ of attachment and ordered funds in the amount of $46, 591.10 and future quarterly installments in the amount of $25, 758.60 to be paid into the district court as security for the prejudgment writ of attachment.

         After Finken filed his application for prejudgment writ of attachment, Domina Law Group filed its petition to intervene in the attachment proceeding pursuant to Iowa Code section 639.60. Domina represented West in the prior suit against Western Marketing. Domina claimed a priority interest in the attached judgment proceeds by way of an attorney's fee lien filed pursuant to Iowa Code section 602.10116.

         The petition for intervention came on for a scheduling hearing in September 2016. At the hearing, Domina Law Group introduced into evidence the affidavit of Brian Jorde in support of the petition to intervene. The affidavit was supported with attachments establishing the judgment in the prior proceeding, the notice of attorney's lien on the judgment, and notices of updates to the attorney's lien on the judgment. At the scheduled hearing, Finken and the estate resisted Domina's petition to intervene in the auxiliary attachment proceeding. Finken and the estate argued this was an inappropriate forum for relief and Domina was trying to "jump ahead" of other creditors of West's estate. The estate raised independent concerns regarding the lien because the estate had pending in federal court a malpractice claim against Domina relating to Domina's representation of West in the corporate dissolution proceeding. In that same suit, Domina asserted a counterclaim against the estate for unpaid attorney's fees. The district court dismissed the petition to intervene for the following reason:

The court concludes that even if Domina's lien was perfected before the prejudgment garnishment ordered in this case, the amount of attorney fee[s] due to Domina in file CVCV029621 is in dispute. The court concludes that Domina has recourse to recover any fees it is owed either in the Arizona probate case or in the pending federal counterclaim.
Moreover, this court has made no determination of the merits of the prejudgment garnishment or the claims of the parties in this file. It is possible that as litigation in this present case continues that the garnishment will be quashed.

          Domina timely filed this appeal. The estate filed a responsive brief, defending the district court's denial of Domina's statutory petition for ...


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