from the Iowa District Court for Polk County, Bradley McCall,
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.
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.
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.
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.
Background Facts and Proceedings
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. 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.
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.
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
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 ...