IN THE SUPREME COURT OF XXX
XXX
Plaintiff-Appellant,
v.
XXX
Defendant-Appellee.
APPEAL FROM THE XXX DISTRICT COURT
FOR STORY COUNTY
APPELLATE BRIEF
Submitted by:
___________________________________
XXX
XXX
XXX
Plaintiff-Appellant in pro per
AMENDED BRIEF
JURISDICTION
The Appellant reiterates that the court has jurisdiction to her the appeal. The preceding is backed by Rule 6.103(1) which makes provision on final orders and judgement. It expressly provides: “All final orders and judgments of the district court involving the merits or materially affecting the final decision may be appealed to the supreme court, except as provided in this rule, rule 6.105, and Iowa Code sections 814.5 and 814.6. An order granting or denying a new trial is a final order. An order setting aside a default judgment in an action for dissolution of marriage or annulment is a final order. An order setting aside a default judgment in any other action is not a final order.”
Also, while addressing the jurisdictional question, the Supreme Court of Iowa ruled as follows;
“The State raises the issue of whether we have jurisdiction to hear this appeal. Since 897 N.W.2d 96 the district court ruling is on a motion to correct an illegal sentence, the State argues that Propps cannot appeal the denial of his motion to correct an illegal sentence because the ruling denying such a motion is not a “final judgment of sentence” under Iowa Code section 814.6(1). We requested supplemental briefing to address this preliminary issue.
Subject-matter jurisdiction over a claim is conferred either constitutionally or statutorily. De Stefano v. Apts. Downtown, Inc. , 879 N.W.2d 155, 164 (Iowa 2016). Iowa Rule of Appellate Procedure 6.103(1) provides that “[a]ll final orders and judgments of the district court involving the merits or materially affecting the final decision may be appealed to the supreme court, except as provided in this rule, rule 6.105, and Iowa Code sections 814.5 and 814.6.” Iowa R. App. P. 6.103(1).
Iowa Code section 814.6 contains the standards for subject-matter jurisdiction for the review of a criminal defendant’s appeal. Iowa Code § 814.6. Pertinent to this case, a criminal defendant has the “right of appeal” from “[a] final judgment of sentence.” Id. A previous version of the statute provided that “[a]n appeal can only be taken from the final judgment, and within sixty days thereafter.” Iowa Code § 793.2 (1954). The statute was thereafter amended to include the clarifying language “judgment of sentence .” Iowa Code § 814.6 (1983) (emphasis added). This language continues today. See Iowa Code § 814.6(1)(a ) (2017).”
SUMMARY JUDGMENT
The Appellant also reiterated that the main purpose of summary judgment s weeding out paper cases and defenses in order to make way for litigation. The preceding was reiterated in the case of Slaughter v Des Moines University College of Osteopathic Medicine 925 N. W. 2D 793, 808 (lowa 2019). Further, the case held that judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a nonmoving party must show what evidence, it has that would convince a trier of fact to accept its version of the events.
Therefore, the Appellant asserts that only parties with a just cause deserve a summary judgment. The judicial office of Lowa District Court thus erred in issuing a summary judgement to the Respondent without critically examining whether he has a just cause or otherwise.
Further, the Appellant agrees with the reliance of the District Court of Lowa on the case of Bauer v Stern Finance Company 169 N.W.2D 850, 853 (lowa 1969) that stated that a party with just cause should be able to obtain summary judgment promptly and without delay and expense of trial when there is no genuine issue of fact to be decided. Therefore, the District Court of Lowa misdirected itself is considering that the Respondent’s case was one with a genuine issue of fact. The Defendant Respondent, from the evidence, has altered the Appellant’s online account and disinherited her by taking her legal rights away hence ill motive.
Further, the Appellant avers that Lowa District Court erred in issuing a summary judgment that the Appellant was not able to meet her burden of proving that the Respondent had converted the property in question. In the cases of Welke v City of Davenport 309 N. W. 2d 450, 451- 52 (lowa 1981) and Blackford v Prairie Meadowa Racetrack 7 Casino Inc778 N.W. 2d 184, 188 (lowa 2010), where the courts held that: ““The essential elements of conversion are:
- ownership by the plaintiff or other possessory right in the plaintiff greater than that of the defendant;
- exercise of dominion or control over chattels by defendant inconsistent with, and in derogation of, plaintiff’s possessory rights thereto; and
- damage to plaintiff.” Matter of Estate of Bearbower, 426 N.W.2d 392, 394 (Iowa 1988). (Emphasis ours).
From the preceding contention, the Appellant contends that the District Court of Lowa, erred in failing to consider the Taunny Mahoney’s voluntary witness statement, the subpoena to produce documents for TIAA/TIAA-CREF and the defendant respondent’s answers to the interrogatories as sufficient evidence for the Respondent’s ulterior motives and conversion.
Moreover, Taunney stated in his witness statement that Thongphoune had no interest in naming her husband, Phouangphanh Sengphirom, as a beneficiary. This is also confirmed with Thongphoune removing her husband as a beneficiary in the TIAA benefit account. This indicates that Thongphoune did not thoroughly go through the Will or have a good understanding of the Will before signing.
INTERROGATORIES
The Defendant’s Answers to Interrogatories, sent 12-20.pdf (Interrogatory 1): Defendant claimed to have gotten permission from Thongphoune through a phone call to log into her benefit account to remove Plaintiff as a beneficiary. Admitting to removing Plaintiff as a beneficiary. (Exhibit 6) The same is also evident in the Defendant’s Supplemental Answers to Interrogatories, sent 4-21-22: Defendant changed method of communication from “phone” to “in person” but provided no support to show that he was in Nevada at the time of making the online change. (Exhibit 7)
Moreover, to establish any claim of fraudulent misrepresentation, the Plaintiff has the burden of proving each of the following elements:
- representation
- falsity
- materiality
- scienter
- intent to deceive
- reliance
- resulting injury and damage.’”
The preceding was held in the case of Van Sickle Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa 2010) (quoting Lloyd v. Drake Univ., 686 N.W.2d 225, 233 (Iowa 2004)); see also Iowa Civil Jury Instruction 810.1. “These elements must be established by ‘a preponderance of clear, satisfactory, and convincing proof.’” Van Sickle, 783 N.W.2d at 687 (quoting Lloyd, 686 N.W.2d at 233). In the case of a fraudulent misrepresentation, “[t]he tortious act occurs at the time the representations are made, not when they later prove to be false.” Grayheck v. Voluntary Hosp. Coop. Ass’n of Iowa, Inc., 473 N.W.2d 31, 35 (Iowa 1991).
Therefore, the District Court of Lowa thus erred in failing to consider the Taunny Mahoney’s voluntary witness statement, the subpoena to produce documents for TIAA/TIAA-CREF and the defendant respondent’s answers to the interrogatories as sufficient evidence for the Respondent’s that met all the preceding elements that must be proven for fraudulent misrepresentation.
The Appellant thus reiterates the prayer initially sought in the brief which include:
- Setting aside of the summary judgment
- Stay of execution of the summary judgment against the Plaintiff Appellant.
- Reconsidering of the facts stated by the Appellant.
- Any other relief that the court deems fit to grant.
Dated this ____ day of September ,XXX
Respectfully Submitted,
___________________________________
XXX,
Plaintiff-Appellant in pro per
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