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Struve v. Struve

Supreme Court of Iowa

June 21, 2019

GEORGE E. STRUVE, Petitioner by substitute petitioners DIANNE LAWRENCE, PAUL STRUVE, and RONALD STRUVE, Appellants,

          Appeal from the Iowa District Court for Clinton County, Mark R. Lawson, Judge.

         Appeal from the denial of a petition alleging elder abuse brought pursuant to Iowa Code chapter 235F (2016). AFFIRMED.

          T. Randy Current and A. John Frey Jr. of Frey, Haufe & Current, P.L.C., Clinton, for appellants.

          Brian P. Donnelly of Mayer, Lonergan & Rolfes, Clinton, guardian ad litem for appellant George Struve.

          Steven E. Balk of Pepping, Balk, Kincaid & Olson, Ltd., Silvis, Illinois, for appellee Clayton Struve.

          Christopher L. Farwell of Farwell & Bruhn, Clinton, for appellee Perry Struve.


         At the heart of this case is an intrafamily dispute regarding farmland. Dianne Lawrence, Paul Struve, and Ronald Struve, as substitute petitioners for their father George Struve, filed a petition for relief from elder abuse pursuant to Iowa Code chapter 235F (2016). In their petition, they alleged their brother Perry Struve and his son Clayton Struve committed elder abuse against George. Specifically, the substitute petitioners contended Perry and Clayton unduly influenced George to enter into below-market-rate lease agreements to farm George's land, to gift some of George's land to Perry and Clayton, and to write a new will to reflect the gifted land. The substitute petitioners sought relief for the loss associated with those transactions. The district court denied the petition with respect to the challenged transactions, concluding chapter 235F was a summary proceeding and the substitute petitioners failed to establish their father was a "vulnerable elder" subject to "financial exploitation" within the meaning of chapter 235F. The substitute petitioners timely filed this appeal.


         The substitute petitioners first contend the district court erred in concluding they failed to prove an entitlement to statutory relief. We review the district court's decision de novo. In re Chapman, 890 N.W.2d 853, 856 (Iowa 2017). This means we will decide anew the issues properly preserved for appellate review. In re Estate of Cory, 184 N.W.2d 693, 695 (Iowa 1971). However, "we afford deference to the district court for institutional and pragmatic reasons." Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). As such, we give weight to the district court's factual findings. Chapman, 890 N.W.2d at 856; Hensch, 902 N.W.2d at 824.

         To establish an entitlement to relief, the substitute petitioners were required to prove by a preponderance of the evidence their father was a vulnerable elder subject to elder abuse. See Iowa Code § 235F.5(1) (setting forth the burden of proof). A "vulnerable elder" is "a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of age or a mental or physical condition." Id. § 235F.1(17). In Chapman, we held a petitioner must prove "(1) [t]he person [is] sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition." 890 N.W.2d at 857. The Code sets forth four categories of elder abuse, including, as relevant here, financial exploitation. Iowa Code § 235F.1(5)(a)(1)-(4). Financial exploitation occurs

when a person stands in a position of trust or confidence with the vulnerable elder and knowingly and by undue influence, deception, coercion, fraud, or extortion, obtains control over or otherwise uses or diverts the benefits, property, resources, belongings, or assets of the vulnerable elder.

Id. § 235F.1(8).

         The substitute petitioners contend age, standing alone, is sufficient to establish a person is a vulnerable elder. We disagree. It appears the challenged transactions occurred in August, September, and October of 2015. At the time, George was eighty-five or eighty-six years old. However, the Code and Chapman make clear the substitute petitioners were required to prove both that George was sixty years old or older at the time of the challenged transactions and that George was unable to self-protect due to one of the statutorily-specified causes-age, mental condition, or physical condition.[1] See id. § 235F.1(17); Chapman, 890 N.W.2d at 857. Absent proof of the inability to self-protect, the statute would encompass garden-variety legal claims involving persons age sixty or older. Such a result is overbroad in two respects: first, it creates a cause of action for persons outside the intended scope of the statute; second, it creates unintended legal exposure for persons who happen to be in a dispute with someone who is over the age of sixty but who is not otherwise a vulnerable elder.

         In the alternative, the substitute petitioners argue they proved George was unable to protect himself at the relevant time due to his declining mental health. They rely primarily on a cognitive-function evaluation performed in October 2016 by neuropsychologist Dr. Daniel Tranel. Dr. Tranel diagnosed George with progressive dementia. Dr. Tranel reevaluated George one year later in October 2017. After that evaluation, Dr. Tranel concluded George's cognitive functioning was in continuing decline and George was not able to care for himself without support. Dr. Tranel provided a retrograde assessment and found George might have been mildly impaired at the time of the challenged transactions. In addition to Dr. Tranel's opinion, the substitute petitioners rely on the fact George changed his legal affairs and his estate plan on multiple occasions in 2015 and 2016. They contend the changes evidence George's inability to self-protect.

         On de novo review, we conclude the substitute petitioners failed to prove George was a vulnerable elder at the time of the challenged transactions. With respect to the medical evidence, while Dr. Tranel's deposition testimony is relevant, it is not dispositive. See In re Estate of Springer, 252 Iowa 1220, 1225, 110 N.W.2d 380, 384 (1961) (stating "the condition of the testator's mind at other times" merely "throw[s] light upon the condition of [her] mind at the time of making the will"). There was contemporaneous medical evidence contrary to Dr. Tranel's opinion that showed George was not suffering from any mental health conditions at the relevant time. George underwent a mini mental status evaluation in 2015 and scored 29/30. During that year, George also attended regular appointments with his primary care physician of more than thirty years. George's medical records from May 2014 through May 2016 show that his memory and judgment were within normal limits; the records make no reference to dementia. In July 2015, nursing home staff reported that George had clear comprehension.

         George's conduct during the relevant time also showed his mental health was unimpaired. After George's wife died in 2014, George served as executor of her estate. He was issued a state driver's license in the same year. George managed his own finances until midyear in 2016 when he established a voluntary conservatorship. He served as a trustee for the Elk River Township well into 2016 and regularly attended township meetings. He continued to work on his farm. In short, George was active and appeared to be in good health. There was no indication from his conduct that George was unable to protect himself.

         The evidence showed that people who interacted with George during the relevant time period thought George competent and had no concern regarding his mental health and ability to conduct his own affairs. Joel Kaczinski, an acquaintance of George's since childhood, notarized George's farm leases in 2014 and believed George to be competent at the time. George interacted with two different attorneys during the relevant time, and neither questioned his competency. Rebecca Widener, who had known George for twenty years, testified she visited George in early 2016 and noticed no cognitive impairment. There was also evidence showing the substitute petitioners treated George as though he could handle his own affairs. In February 2016, Ronald and Dianne reported to law enforcement that George was "of good mind" and was capable of operating a vehicle. In November 2015, after the transactions at issue in this case, Ronald borrowed $3000 from George through an executed loan agreement. At trial, Ronald was unable to reconcile his claim that George was a vulnerable elder with the fact that Ronald borrowed money from George at the same time. Ronald testified, "I don't square that circle. I don't have to square that circle." Ronald's inability to "square that circle" casts doubt on his credibility and current allegations.

         The most telling evidence that George was able to protect himself during the relevant time period is the fact he did so. In February and March 2016, George complained to his attorney that he was frustrated with the family's bickering over the farmland. George then took the initiative to establish a voluntary conservatorship to protect himself and stop the children from bothering him regarding the farmland. Clinton National Bank served as George's conservator.

         We further note the evidence showed the changes to George's estate plan were consistent with George's intentions. Attorney Glenn Bartelt testified George's "number one priority in his estate plan [was] to maintain the Struve family farming operation beyond his lifetime." George's decisions to enter into below-market-rate lease agreements for the benefit of Clayton and to deed Perry and Clayton most of the family farmland were consistent with George's and his wife's intent to keep the farms within the family. Perry was the only one of their children who pursued farming as an occupation, and Clayton was the only one of ...

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