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Pesce v. City of Des Moines

Court of Appeals of Iowa

August 1, 2018

CYNTHIA PESCE, Plaintiff-Appellant,
v.
CITY OF DES MOINES and THE ANIMAL RESCUE LEAGUE OF IOWA, INC., Defendants-Appellees. JAYSEN MCCLEARY, Petitioner,
v.
IOWA DISTRICT COURT, Respondent.

          Appeal from the Iowa District Court for Polk County, Bradley McCall, Judge.

         Cynthia Pesce appeals the district court's dismissals and reassignments of her seized property claims. Her attorney Jaysen McCleary appeals the imposition of sanctions. AFFIRMED ON APPEAL. WRIT ANNULLED.

          Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          Michelle R. Mackel-Wiederanders, Assistant City Attorney, for appellee City of Des Moines.

          Jason M. Casini of Whitfield & Eddy, P.L.C., Des Moines, for appellee The Animal Rescue League of Iowa.

          Considered by Vogel, P.J., and Doyle and Bower, JJ. McDonald, J., takes no part.

          PER CURIAM

         Cynthia Pesce appeals the district court's actions in reassigning her seized-property claim to a civil matter, dismissing her second seized-property claim, and holding a hearing after she filed a motion to dismiss and notices of appeal. Her attorney, Jaysen McCleary, petitions for writ of certiorari regarding the district court's imposition of sanctions for his actions in the proceeding. We find the district court did not err or abuse its discretion in managing Pesce's seized-property claims or in holding the hearing. We also find the district court did not abuse its discretion in imposing sanctions. Therefore, we affirm the actions of the district court, and we annul the writ of certiorari.

         I. Background Facts and Proceedings

         On April 7, 2016, Cynthia Pesce, through her attorney Jaysen McCleary, filed her first Application for Return of Seized Property, naming the City of Des Moines (City) and the Animal Rescue League (ARL) as defendants. According to the application, one of her four dogs allegedly bit someone on March 19. In response, the City took control of all four dogs and placed them in quarantine. When the quarantine period ended on March 29, the City transferred control of the dogs to the ARL, and the ARL refused to return the dogs to Pesce.[1] Pesce sought return of the dogs as seized property under Iowa Code chapters 809 and 809A (2016), and she claimed conversion and constitutional violations. Also on April 7, she requested-and the court granted without a hearing-an "emergency stay," which ordered the City and ARL not to destroy or allow the "dogs to be adopted without further order." McCleary communicated with the ARL about Pesce and the dogs multiple times before filing the petition, but he did not notify them about the application or stay until minutes after the court granted the stay. The court initially accepted the application as a seized-property claim in case number SPCE079882, but it later reassigned the application as a civil claim in case number CVCV051695.

         On April 11, the ARL filed a motion seeking to vacate or modify the stay, claiming Pesce had misconstrued the facts and the law. Among its claims, the ARL asserted Pesce failed to provide notice or show why it should not provide notice before requesting the stay, as required by rule. The court initially scheduled a hearing on the matter for May 26. On Pesce's motion, the court allowed McCleary to appear telephonically for the hearing because he was temporarily living outside Iowa. On May 23, Pesce filed a motion to continue the hearing due to illness on the part of McCleary. On May 25, the court continued the hearing until June 2 at 8:00 a.m., and it ordered Pesce to post a bond for the stay. Pesce never posted a bond as ordered.

         On the morning of June 1, Pesce filed a second Application for Return of Seized Property. The second application named only the City as a defendant, repeated the factual allegations from the first application, and only sought return of the dogs under section 809A.8 and another stay. The second application also contained a preliminary statement acknowledging the first application "that contained additional actions for relief; however, the additional actions may have caused the court to not recognize the application for seized property." The clerk of court accepted the second application as a seized property case and assigned it to a judge on the criminal docket under case number SPCE080114. That afternoon, McCleary sent an email to the judge assigned to SPCE080114 to alert her to the filing and ask her to "order the stay before leaving today." Later that day, that judge forwarded McCleary's email to the judge assigned to CVCV051695, who then denied the second application and ordered SPCE080114 closed with the pleadings reassigned to CVCV051695 with the first application.

         On June 2 at 7:19 a.m., forty-one minutes before the scheduled start of the hearing, McCleary sent an email to the court and opposing counsel saying he would be fifteen minutes late for the hearing because "among other things" he runs "an animal rescue and yesterday came into possession of a 1 day old male bison." At 7:45 and 7:47, Pesce filed separate notices of appeal for case numbers SPCE079882 and SPCE080114, both of which were signed by McCleary. One notice claimed the "stay order must be obeyed as [the court] has lost jurisdiction to modify or vacate the stay" due to the appeal. At 8:01, one minute after the scheduled start of the hearing, Pesce filed a motion for case number CVCV051695, signed by McCleary, captioned "Motion to Dismiss Without Prejudice the Remaining Claims Pursuant to 1.943 Until the Matters on Appeal Are Decided in SPCE079882 and SPCE080114." At 8:06, McCleary sent another email to the court and opposing counsel:

I will not be able to attend the hearing today due to an emergency with my one day old bison calf. I apologize to all for the inconvenience, however, the issues involved in the scheduled hearing are now on appeal to the Iowa Supreme Court and the remaining causes of action have been dismissed pursuant to [rule] 1.943 without prejudice and this court lacks jurisdiction to deny this motion as well as the fact this court lacks jurisdiction regarding the matters that are now on appeal before the Iowa Supreme Court.
If the court believes any matters remain the undersigned requests a continuance for the hearing due to good cause regarding this emergency.

At 8:11, Pesce filed a motion for continuance, signed by McCleary, claiming there are no "matters left for this court to rule on but in case the court disagrees the undersigned requests a continuance of this hearing due to good cause." At 9:30, she filed a notice of ...


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