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Kraus v. Mummau

Court of Appeals of Iowa

January 24, 2018

MARVIN E. KRAUS AND KEVIN W. KRAUS, as Co-Executors of the ESTATE OF BEVERLY A. KRAUS, Plaintiffs-Appellees,
v.
VINCENT MUMMAU, Defendant-Appellant.

         Appeal from the Iowa District Court for Clayton County, Margaret L. Lingreen, Judge.

         Defendant appeals the district court decision denying his request to set aside a civil judgment on the grounds of extrinsic fraud.

          Matthew M. Sahag of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          Benjamin G. Arato and Robert G. Tully of Law Offices of Rob Tully, P.C., West Des Moines, and Mark A. Roeder of Roeder Law Office, Manchester, for appellee.

          Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          BOWER, Judge.

         Vincent Mummau appeals the district court decision denying his request to set aside a civil judgment on the grounds of extrinsic fraud. We find Mummau has not shown there was extrinsic fraud and the district court did not abuse its discretion in denying his petition to vacate the civil judgment under Iowa Rule of Civil Procedure 1.1012. We affirm the decision of the district court.

         I. Background Facts & Proceedings

         Mummau was convicted of sexual abuse in the third degree, in violation of Iowa Code section 709.4 (2011), based on an incident which occurred on July 7, 2011. His conviction was affirmed on appeal.[1] See State v. Mummau, No. 12-1082, 2013 WL 2145994, at *7 (Iowa Ct. App. May 15, 2013).

         As part of the criminal case, the victim, Beverly Kraus, who was then seventy-three years old, gave a deposition on August 16, 2011. Kraus was asked, "Have you ever made any kind of complaints regarding sexual impropriety by anybody else?" Kraus stated she had been molested by a relative when she was a child. She was then questioned:

Q. Since that time was there ever any other time that you made a complaint against anybody about a sexual impropriety? A. No.
Q. And that would also go for at work; there was never any kind of a sexual harassment claim or anything like that? A. No, not from me.

         On December 26, 2012, Kraus filed a civil action against Mummau seeking damages from him on the grounds of sexual battery and sexual abuse.

         Kraus's deposition in the civil action was taken on October 3, 2013. Her attorney stated evidence of Kraus's sexual conduct with persons other than Mummau, the person who committed the sexual abuse, was not subject to discovery under section 668.15, and instructed Kraus not to answer questions on the issue. Mummau's attorney stated, "[W]e'll move on and deal with it later." Kraus was asked if she had been the defendant in any civil suits. She was not questioned about whether ...


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