Billy Dean Carter, Bill G. Carter, and the Estate of Shirley D. Carter, by and through Bill G. Carter v. Jason Carter

• Court: Supreme Court of Iowa
• Decided: March 19, 2021
• Docket: 18-0296
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 18–0296

Submitted January 21, 2021—Filed March 19, 2021

BILLY DEAN CARTER, BILL G. CARTER, and the ESTATE OF SHIRLEY D. CARTER, by and through BILL G. CARTER, Executor,

Appellees,

vs.

JASON CARTER,

Appellant.

Appeal from the Iowa District Court for Marion County, Martha L.

Mertz, Judge.

The defendant appeals a judgment against him for his mother’s

death. AFFIRMED.

Christensen, C.J., delivered the opinion of the court, in which all

participating justices joined. Appel and Mansfield, JJ., took no part in the consideration or the decision of the case.

Allison F. Kanne (argued) of Wandro & Associates, P.C., Des Moines,

and Christine E. Branstad (argued) and Nathan A. Olson of Branstad &

Olson, Des Moines, for appellant.

Mark E. Weinhardt (argued) and David N. Fautsch of the Weinhardt

Law Firm, Des Moines, for appellees. 2

CHRISTENSEN, Chief Justice.

In this case the defendant, Jason Carter (Jason), was civilly accused

by his father, Bill Carter (Bill), and brother, Billy Carter (Billy), of

intentionally shooting his mother, Shirley Carter (Shirley), and causing her

death. Before the trial began, the Iowa Department of Criminal

Investigations (DCI) agreed to share certain information from its

investigation on the murder with the parties in response to a subpoena

served on it by the plaintiffs. A jury determined Jason was civilly liable.

The state then subsequently charged Jason with first-degree murder. As

a result of discovery during that criminal proceeding, the state provided

Jason with exculpatory evidence.

Jason appeals from his civil case and argues the district court erred

by: (1) denying his motion for continuance until law enforcement decided

whether to prosecute him; (2) denying his motion to quash the plaintiffs’

subpoena to DCI; (3) denying his motion for judgment notwithstanding the

verdict; (4) dismissing his first petition to vacate the judgment; (5) denying

his motion for recusal; and (6) dismissing his second petition to vacate the

judgment as time-barred. We conclude that the district court did not

abuse its discretion in denying Jason’s motion for continuance, judgment notwithstanding the verdict, first petition to vacate the judgment, and

motion for recusal. Jason’s motion to quash the subpoena to DCI was

properly denied, and the district court judge lacked jurisdiction to hear his

second petition to vacate the judgment because it was untimely.

I. Background Facts and Proceedings.

Shirley farmed with her husband, Bill, in Marion County. Early in

the morning of July 19, 2015, the couple left their farmhouse to get coffee

together. Afterward, Bill dropped Shirley off back at the house. A neighbor

saw Bill leave the home around 7:45 a.m. He was taking a load of corn in 3

a semitrailer to a processing facility about an hour drive away in Eddyville,

Iowa. He arrived at the processing facility at 9:01 a.m. and left at 9:22

a.m. He stopped at a Casey’s General Store in Lovillia, Iowa, at 9:54 a.m.

and then drove to a farm where he rented land to reload his semitrailer

with corn. As Bill was driving back home, he received a call from his

daughter, Jana Lain, telling him that Jason called her and said he found

Shirley dead at the home but he wouldn’t call 911. Bill called 911 as he

rushed back to the house.

Jason is a farmer like his parents and was also taking a load of corn

to Eddyville that morning. His truck was seen exiting the processing

facility at approximately 9:58 a.m. He went to a different farm, where he

sometimes parked, to drop off his tractor trailer. He then drove his pickup

truck back to his parents’ home. Jason called his sister at 11:08 a.m. to

tell her that their mother was dead in the home. He called 911 at

11:11 a.m. and told the operator his mother was dead and that she seemed

to have been on the floor for two hours. He also stated there was a hole

through the floor and in the refrigerator. At some point, Jason hid the

second cell phone he had for texting a woman he was having an affair with

in the engine compartment of his vehicle. Bill arrived at the house shortly after Jason called 911. It was later determined that Shirley had been

fatally shot twice.

Shirley’s family was allowed back into the farmhouse two days after

her death. The family found evidence DCI had missed, including a gun

safe stored in the basement of the house. One gun was missing from the

safe—a .270 Remington high-powered rifle. DCI collected the gun safe.

Investigators determined that the bullet fragments collected from the crime

scene had been fired from a high-powered rifle. Bill had shot the missing

.270 rifle into an earthen bank once, and law enforcement was able to 4

recover bullets from the location. A criminalist concluded that the

fragments from the crime scene were consistent with coming from a high-

powered rifle in the .270–.280 caliber range. The missing rifle has not

been located to date. Jason told law enforcement that he had never

touched the gun safe or known his parents had one until Shirley’s death.

Bill on the other hand thought Jason and his wife had given the gun safe

to him as a gift. Ultimately, Jason’s fingerprints were found on the gun

safe. The location of some of the fingerprints was consistent with that of

someone assembling the gun safe.

On January 5, 2016, approximately six months after Shirley’s death,

the plaintiffs Bill and Billy, through the Estate of Shirley Carter, filed this

suit against Jason and alleged he shot her causing her death. At this point

no criminal charges were pending. On July 5, the plaintiffs served a

subpoena to DCI requiring it to produce the entire law enforcement

investigation file on Shirley’s homicide. DCI filed a motion to quash the

subpoena. On April 17, 2017, the plaintiffs met with DCI to discuss

whether they would be willing to produce certain information. DCI agreed

to produce certain documents to both the plaintiffs and Jason. The

plaintiffs agreed to share information with DCI as well. As a result of the meeting, the plaintiffs served a second subpoena on DCI requesting the

agreed-upon documents:

1. All documents, whether in print, audio, or video, reflecting or relating to any interview of or conversation with Jason Carter conducted by the DCI and/or the Marion County Sheriff’s Office following the death of Shirley Carter on June 19, 2015.

2. All documents . . . relating to any interview of or conversation with Bill G. Carter conducted by the DCI and/or the Marion County Sheriff’s Office following the death of Shirley Carter on June 19, 2015. 5 3. Any report . . . relating to any investigation by any agent of officer . . . regarding the level of grain contained in Bill G. Carter’s semi-tractor trailer on June 19, 2015.

4. All documents reflecting or relating to cell phone text messages made to and from [certain phone numbers] on or around June 19, 2015.

5. All documents reflecting or relating to reports of the processing of, and photography of, the home and premises in which Shirley Carter’s death apparently occurred on June 19, 2015 by DCI and/or the Marion County Sheriff’s Office. This item includes but is not limited to any sketch, diagram, or map of the home and/or premises.

6. All documents reflecting or relating to reports of the collection of, and the analysis of, fingerprint evidence gathered and processed by DCI and/or the Marion County Sheriff’s Office from the home and premises in which Shirley Carter’s death apparently occurred on June 19, 2015.

7. All documents reflecting or relating to reports of the collection of, and the analysis of, firearms and/or ballistics evidence gathered and processed by DCI and/or the Marion County Sheriff’s Office from the home and premises in which Shirley Carter’s death apparently occurred on June 19, 2015.

8. Transcripts of the depositions taken pursuant to I. R. Crim. P. 2.5(6) of Shelly Carter, Chase Carter, Cecil Harry, and Ginger Harry.

9. All security or other video evidence depicting Bill G. Carter at Casey’s General Stores outlets in or near either Lovillia, Iowa or Milo, Iowa on June 19, 2015.1

Jason moved to quash the subpoena. On August 18, the district court

denied the motion to quash. On December 5, the day trial was scheduled

to commence, Jason moved to continue the trial until law enforcement

made a final decision as to whether criminal charges would be filed. The

district court denied the motion for continuance.

The jury trial began as scheduled on December 5. At the close of

the plaintiffs’ case, Jason moved for a directed verdict on the plaintiffs’

1Based on the record, items number eight and nine were not produced to the parties. 6

negligence and battery claim. The district court granted his motion as to

the negligence claim and denied his motion as to the battery claim. At the

close of all evidence on the plaintiffs’ battery claim, Jason moved for a

directed verdict. The court denied this motion. On December 15, the jury

found Jason civilly liable for Shirley’s murder, and on December 18 he

moved for judgment notwithstanding the verdict. On the same date, the

state charged Jason criminally with first-degree murder. On February 14,

2018, the district court denied Jason’s motion for judgment

notwithstanding the verdict.

Beginning in February, the state provided Jason with discovery in

the criminal case. On March 21, he was acquitted of murder. On May 30,

Jason filed a petition to vacate the judgment based on newly discovered

evidence. The court held a two-and-a-half-day hearing on the petition. On

January 31, 2019, the district court dismissed the petition. On August

30, Jason filed a second petition to vacate the judgment based on newly

discovered evidence. While this petition was pending before the judge,

Jason filed a motion for the judge to recuse herself due to an allegation

that the judge had told an attorney Jason “was guilty as sin” and was seen

speaking ex parte to the plaintiffs’ counsel in the courthouse during the civil trial. The district court denied Jason’s motion for recusal and

dismissed his second petition finding it lacked jurisdiction due to being

filed past the one-year deadline contained in Iowa Rule of Civil Procedure

1.1013. Jason appeals to this court.

II. Standard of Review.

We review a district court’s denial of a motion for continuance for

abuse of discretion. State ex rel. Miller v. New Womyn, Inc., 679 N.W.2d

593, 595 (Iowa 2004). A party challenging a denial of a motion for

continuance carries a heavy burden. Id. “Because evidentiary privilege in 7

Iowa is based on statute, our review is on error.” State v. Richmond, 590

N.W.2d 33, 34 (Iowa 1999). However, we review the admissibility of

evidence alleged to be privileged for an abuse of discretion. State v.

Anderson, 636 N.W.2d 26, 30 (Iowa 2001). We review a district court’s

denial of a motion for judgment notwithstanding the verdict for correction

of errors at law. Crookham v. Riley, 584 N.W.2d 258, 265 (Iowa 1998).

Our review is limited to the grounds stated in the motion for directed

verdict. Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa 1990). We give a

district court wide discretion in ruling on a petition to vacate the judgment

or grant a new trial based upon newly discovered evidence and an abuse

of discretion is needed for reversal. Soults Farms, Inc. v. Schafer, 797

N.W.2d 92, 109 (Iowa 2011). We review a judge’s decision on a motion to

recuse for abuse of discretion. State v. Hoyman, 863 N.W.2d 1, 7 (Iowa

2015). We review the district court’s decision to dismiss Jason’s second

petition to vacate the judgment as untimely for correction of errors at law.

Mormann v. Iowa Workforce Dev., 913 N.W.2d 554, 565 (Iowa 2018);

Harrington v. Univ. of N. Iowa, 726 N.W.2d 363, 365 (Iowa 2007).

III. Analysis.

Jason claims the district court erred in the following ways: (1) by denying his motion for continuance until the criminal investigation

concluded; (2) by denying his motion to quash the plaintiffs’ subpoena to

DCI; (3) by denying his motion for judgment notwithstanding the verdict;

(4) by dismissing his first petition to vacate the judgment based on newly

discovered evidence; (5) by denying his motion for recusal; and (6) by

dismissing his second petition to vacate the judgment.

A. Motion for Continuance. The parties dispute whether error

was preserved on this issue. The plaintiffs argue error was not preserved

because the stated grounds for a continuance described to the district 8

court do not resemble the grounds presented on appeal. Specifically, the

plaintiffs contend Jason moved for continuance at trial until law

enforcement made a decision whether to prosecute, but on appeal takes

the position that a continuance should have been granted because the

evidence obtained from DCI was incomplete. The record shows that

Jason’s counsel “move[d] that this case be continued to such time as law

enforcement makes a final decision or Ed Bull, the county attorney, makes

a final decision as to whether this case will be prosecuted or not.”

On appeal, Jason states that he moved for continuance until the

homicide investigation concluded because he suspected there was

significant exculpatory evidence held by DCI and because DCI provided

only piecemeal inculpatory evidence to the parties. It is clear enough that

the reason Jason had moved for a continuance of the trial until a decision

was made whether to prosecute was because in a criminal case the

government would be required to disclose exculpatory evidence to him.

See Harrington v. State, 659 N.W.2d 509, 522 (Iowa 2003). Therefore, we

determine the reason stated for the continuance at the time the motion

was made and the reason for the continuance offered on appeal are

sufficiently similar and error was preserved. “A continuance may be allowed for any cause not growing out of the

fault or negligence of the movant, which satisfies the court that substantial

justice will be more nearly obtained.” Iowa R. Civ. P. 1.911(1). A trial

court’s discretion in denying a continuance is “very broad.” State v.

Grimme, 338 N.W.2d 142, 144 (Iowa 1983) (quoting State v. McNeal, 261

Iowa 1387, 1393–94, 158 N.W.2d 129, 133 (1968)). We will not interfere

with a trial court’s ruling on a motion for continuance “unless it clearly

appears that the trial court has abused its discretion, and an injustice has 9

resulted therefrom.” Id. (quoting State v. Elliston, 159 N.W.2d 503, 509

(Iowa 1968)).

Jason has failed to show the trial court abused its discretion when

it denied his motion for continuance until law enforcement made a

decision whether to prosecute him for his mother’s murder. The plaintiffs

have two years to file a wrongful death suit, and there is no rule requiring

trial courts to stay civil proceedings until criminal proceedings conclude.

See Iowa Code § 614.1 (2015); United States v. Kordel, 397 U.S. 1, 12–13,

90 S. Ct. 763, 769–70 (1970) (determining that simultaneous and related

civil and criminal proceedings did not violate the Constitution). It was

speculative whether criminal charges would ever be filed against Jason.

Although there may have been an ongoing investigation by law

enforcement, Jason had no criminal charges pending against him for his

mother’s death at the time the civil suit was filed. If we were to overturn

the district court’s decision to deny the motion as an abuse of discretion,

it may be necessary to continue every civil case where there is a possibility

criminal charges may be filed from related facts. See In re Mid-Atl. Toyota

Antitrust Litig., 92 F.R.D. 358, 359 (D. Md. 1981) (describing defendant’s

request for a stay of a civil trial until completion of criminal proceedings where no criminal charges were pending as “unprecedented in its scope”

and a “blanket stay in . . . speculative circumstances”). If the district court

judge had granted Jason’s motion to continue until law enforcement made

a decision to file criminal charges, the continuance could have lasted far

into the future. The plaintiffs may be disadvantaged by a delay until such

unspecified time “as memories fade, witnesses become unavailable, and

evidence is lost.” State v. Christensen, 929 N.W.2d 646, 666 (Iowa 2019).

The district court did not abuse its discretion in denying the motion for

continuance. 10

B. Motion to Quash. The second issue on appeal is whether the

district court abused its discretion in denying Jason’s motion to quash the

plaintiffs’ subpoena to DCI. We must answer the question of whether

Jason can use Iowa Code section 622.11 (2017) to prohibit the state from

voluntarily disclosing portions of the DCI file. Iowa Code section 622.11

states that, “[a] public officer cannot be examined as to communications

made to the public officer in official confidence, when the public interests

would suffer by the disclosure.” Jason takes an all or none approach and

argues that the district court should have either granted his motion to

quash or required all DCI evidence be provided to the parties. On the one

hand, he claims the district court gave the plaintiffs an unfair advantage

by allowing the state to provide segmented prejudicial evidence pursuant

to a private agreement. On the other hand, Jason claims the state cannot

waive the privilege in Iowa Code section 622.11 for use in civil trial.

The plaintiffs argue Jason has no right to prevent the state from

producing information in response to a civil subpoena because section

622.11 does not confer any rights on a private citizen. Therefore, the

plaintiffs claim Jason has no standing to quash the subpoena issued to

DCI. Because we conclude that the official information privilege in Iowa Code section 622.11 cannot be invoked by a private citizen, we agree that

Jason does not have standing to object to the subpoenas directed at DCI.

When the state claims official information privilege under section

622.11, the court must decide whether the public interests would suffer

by the disclosure requested. See Nizzi v. Laverty Sprayers, Inc., 259 Iowa

112, 119, 143 N.W.2d 312, 316 (1966). “An official claiming the privilege

must satisfy a three-part test: (1) a public officer is being examined, (2) the

communication was made in official confidence, and (3) the public interest

would suffer by disclosure.” Hawk Eye v. Jackson, 521 N.W.2d 750, 753 11

(Iowa 1994) (citing State ex rel. Shanahan v. Iowa Dist. Ct., 356 N.W.2d

523, 527 (Iowa 1984)). This case presents the unusual situation where it

is a private litigant, rather than the state, attempting to keep state

information confidential. Both parties rely on State ex rel. Shanahan v.

Iowa District Court, 356 N.W.2d 523, to support their argument.

In Shanahan, we determined that the district court had erred in

requiring the state to produce its entire DCI file to the litigants in a

wrongful death action in a double homicide case. Id. at 525. Initially the

plaintiffs served a subpoena on the state compelling production of its

entire investigatory file, but a temporary accommodation was reached

where the state agreed to provide to both parties the officers’ statements

regarding the crime scene, medical examiners, a state-engaged locksmith,

and lists of guests and employees at the hotel on the night in question. Id.

at 526. The defendants then served their own subpoena compelling

production of the entire DCI file. Id. The state asserted that the file was

privileged under Iowa Code section 622.11. Id. at 527. We enforced the

statutory privilege contained in section 622.11 and reversed the district

court’s order to disclose the entire DCI file. Id. at 31.

The present case is clearly different from Shanahan, because in this case the state did not object or assert any privilege to the plaintiffs’ second,

more focused, subpoena. Jason claims that the protection against

disclosure of official information in section 622.11 does not turn on

whether law enforcement decides to assert the privilege. We disagree.

Iowa caselaw shows that only the state can claim the qualified privilege in

section 622.11. See id. at 527, 529 (referring to the privilege created by

section 622.11 as “the Governmental Privilege” and “the public officer

privilege”); Hawk Eye, 521 N.W.2d at 753 (“An official claiming the privilege

must satisfy a three-part test . . . .”) (emphasis added); Shannon v. Hansen, 12

469 N.W.2d 412, 414 (Iowa 1991) (stating that section 622.11 creates “a

public officer privilege for communications” and that the state must satisfy

the three-part test to establish the privilege); see also 7 Laurie Kratky

Doré, Iowa Practice Series: Evidence § 5.501:2(B), at 436–37 (2020–2021

ed. 2020) (explaining that the government has the ability to claim the

official information privilege under section 622.11).

Jason additionally claims the district court erred by not accounting

for the public and private interests affected by disclosure of the evidence.

This argument fails to recognize that the aforementioned three-part test

and balancing of interests is only triggered by a claim of privilege by the

state. The state did not assert the official information privilege in this case,

so the district court was not required to balance the interests.

Furthermore, nothing in our caselaw or the language of section 622.11

suggests the state may not voluntarily disclose information that would be

covered by the official information privilege. In Shanahan, the state

voluntarily disclosed several documents from its investigation, as noted

above. 356 N.W.2d at 526, 531 (“The district court should have sustained

the State’s motion for a protective order to the extent that it sought to deny

the civil litigants access to DCI file materials not already disclosed voluntarily to them.”).

Jason’s argument that the district court erred in denying his motion

to quash relies largely on his contention that the plaintiffs were given an

unfair advantage. However, our caselaw makes it clear the official

information privilege does not work to protect Jason’s interests. “The

interest of the public—public safety—is at stake, not the interest of the

officer or the person communicating in confidence.” Id. at 527. It can

similarly be stated that the interest at stake in section 622.11 is not the

interest of a private litigant in a civil suit, such as in this case. See A. W. 13

Gans, Annotation, Constitutionality, Construction, and Effect of Statute or

Regulation Relating Specifically to Divulgence of Information Acquired by

Public Officers or Employees, 165 A.L.R. 1302 (1946) (stating that courts

have pointed out that the official information privilege accorded by various

jurisdiction’s statutes is not for the benefit of parties to litigation). When

the privilege is asserted, our courts balance “the State’s interest in

confidentiality against the private litigants’ interest in exhaustive

discovery”—not the private litigants’ interest in confidentiality. Shanahan,

356 N.W.2d at 525 (emphasis added).

The fact that a meeting between the plaintiffs and DCI occurred prior

to the plaintiffs’ service of the subpoena does not by itself indicate

prejudice and unfairness to Jason. Rather, it shows the plaintiffs were

following our rules of civil procedure that requires the parties to “take

reasonable steps to avoid imposing undue burden or expense on a person

subject to the subpoena.” Iowa R. Civ. P. 1.1701(4)(a); see also id. r.

1.501(3) (“Any discovery motion presented to the court must include a

certification that the movant has in good faith personally spoken with or

attempted to speak with other affected parties in an effort to resolve the

dispute without court action.”). For these reasons, we determine that Jason does not have standing to object to the plaintiffs’ subpoena to DCI

on the basis of Iowa Code section 622.11.

C. Motion for Judgment Notwithstanding the Verdict. Jason

argues that the district court erred in denying his motion for judgment

notwithstanding the verdict because the plaintiffs did not offer evidence

sufficient for a reasonable mind to conclude Jason battered Shirley. At

the close of the plaintiffs’ case, Jason moved for a directed verdict on the

issue of causation claiming there was not enough time for him to have shot

his mother. Jason points to the video of his truck leaving the Cargill corn 14

processing facility at approximately 9:58 a.m. the morning of the murder.

He claims he did not get to his parents’ farm until around 11:00 a.m. at

the earliest since it is an hour drive to his parent’s home and he switched

vehicles on the way. He argues there is no way for him to have shot his

mother and hid the gun sometime between his 11:00 a.m. arrival and the

time he called his sister at 11:08 a.m. to tell her Shirley was dead. He

additionally points to the lack of direct evidence and argues the plaintiffs

failed to offer evidence of a motive. We conclude that when viewing the

evidence in the light most favorable to the plaintiffs, a reasonable mind

could conclude by a preponderance of the evidence that Jason

intentionally shot his mother.

A person is subject to liability to another for battery if that person

acts intending to cause a harmful contact with the person of the other and

a harmful contact results. Nelson v. Winnebago Indus., Inc., 619 N.W.2d

385, 388 (Iowa 2000) (en banc). A motion for directed verdict or judgment

notwithstanding the verdict should be denied if there is substantial

evidence in support of each element of the plaintiffs’ claim. Valadez v. City

of Des Moines, 324 N.W.2d 475, 477–78 (Iowa 1982). “Evidence is

substantial when a reasonable mind would accept it as adequate to reach a conclusion.” Johnson, 451 N.W.2d at 171. The district court is required

to view the evidence in the light most favorable to the party against whom

the motion is made, and we review the evidence in the same light. Fiala v.

Rains, 519 N.W.2d 386, 387 (Iowa 1994). Circumstantial evidence is

equally as probative as direct evidence. Iowa R. App. P. 6.904(3)(p). It is

for the jury to determine the credibility of witnesses. State v. Dudley, 856

N.W.2d 668, 676–77 (Iowa 2014).

Timeline: Although evidence was presented that the window of

opportunity for Jason to have shot his mother is tight, a reasonable mind 15

could determine he had time. Evidence was presented at trial that initially

Jason told law enforcement investigators he may have arrived at his

parent’s home on the day of the murder at 10:45 a.m. or 10:50 a.m. Jason

called his sister to tell her he found Shirley at 11:08 a.m. Using Jason’s

earliest estimate of 10:45 a.m. that would allow him twenty-eight minutes

before calling his sister. Although Jason argues that he did not have time

to drive from Cargill to his parents’ home and shoot his mother before

calling his sister, a fact finder could reasonably decide to find otherwise

based on the timeline Jason first told law enforcement.

Furthermore, the plaintiffs presented evidence to support their

theory that Shirley was still alive when Jason arrived at the farm. Bill

testified he could tell Shirley had fed the pigs and put new sawdust down

recently before her murder because the pigs were still eating when he

arrived and had not yet played in the new bedding like they typically

would. An expert testified that rigor mortis begins to take place in fifteen

to thirty minutes after death in the small muscles of the neck. He stated

that if a person lifted another by the neck after rigor mortis had set in the

person would notice a stiffness and the head would come up like a board.

Bill testified that when he got to the house he went to Shirley and picked her head up and when he let go of her head, it went on its own back to the

floor, thus leading a factfinder to reasonably believe rigor mortis had not

yet set in Shirley’s neck. Furthermore, the plaintiffs put on evidence that

accounted for Bill’s whereabouts during the time the murder could have

occurred thus leading a juror to conclude he could not be responsible.

Evidence: Both the plaintiffs’ and defendant’s experts who testified

to the condition of the crime scene agreed that the scene at the house was

consistent with a staged burglary. The plaintiffs’ expert additionally

testified it was likely Shirley knew her killer. When Jason’s expert was 16

asked whether anything led him to believe the burglary was staged, he

replied, “[F]or someone with my background and experience, you look at

these things -- and this is red flags right off the bat.” Shirley’s purse was

in plain view and undisturbed. Guns, money, pill bottles, and a blank

checkbook were left behind at the crime scene. The only item discovered

to be missing from the home was the .270 Remington rifle. Law

enforcement recovered shell fragments from the crime scene and presented

evidence that the fragments had been fired from a high-powered rifle like

the one missing from the home. For comparison, agents were able to

recover bullet fragments from an earthen bank where Bill had previously

fired the missing rifle. A DCI agent testified that the fragments that killed

Shirley matched the make and model of the missing rifle. Additionally,

law enforcement investigators were not able to find any shell casings from

the shooting. An expert testified that the absence of shell casings indicates

the murderer made sure to pick them up so they could not be matched

back to a particular weapon.

In support of the plaintiffs’ case, Bill testified that the missing rifle

had been stored in a gun safe in the basement of the home. A lab report

determined that Jason’s fingerprints were found on the gun safe even though he had told law enforcement he never touched it. Evidence was

also presented that Jason had access to the gun in the time leading up to

the murder. Bill testified that Jason and his family normally came over

once or twice a week, but the week leading up to the murder they came

over six nights in a row. He further stated that each night Jason asked

him and Shirley what their plans were for the next day. Bill told Jason

the night before the murder that he would be in Eddyville the next morning

unloading his truck of grain. 17

The plaintiffs additionally argued that Jason made statements to

others that show he knew information about his mother’s death that only

the killer could know or that were designed to create an alibi. For example,

Jason told the 911 operator that Shirley looked like she had been on the

floor for two hours. An officer testified that when he arrived at the scene

Jason said she had been shot. To the contrary, Bill testified that when he

arrived at the house, he could not tell Shirley had been shot. Jason’s

brother, Billy, testified that on the day of the murder Jason asked him if

he thought the killer “had to rack another round.” Evidence was presented

that a bolt-action rifle like the type law enforcement believed was used to

kill Shirley is the only type of weapon where this is necessary. The

plaintiffs argued to the jury that on the day of the murder, no one besides

the killer could have known that a bolt-action rifle was used.

Motive: The plaintiffs were not required to prove Jason had a motive

to kill his mother, only to prove by a preponderance of the evidence that

he intended to shoot her. However, the plaintiffs did present evidence to

support their theory that Jason had a financial motive to kill his mother.

A witness testified Jason told him he could not farm with his father

because of his mother. Bill also testified to a conversation he and Shirley had with Jason two months before her death. In the conversation, Jason

asked why he did not own any ground, which prompted Bill to offer to sell

him some land. Bill explained that Shirley was visibly angry by Jason’s

response that he did not want that particular ground because of deer.

The plaintiffs argued several pieces of evidence at trial that could

lead a juror to believe Jason was struggling financially. For example, the

plaintiffs presented Jason’s Wells Fargo bank account statement for June

of 2015, which showed he had assets of approximately $600 and total

liabilities of approximately $180,000. They also showed Jason had $82.34 18

in his Wells Fargo bank account on June 18, and $42.04 in his farm’s

bank account on June 19. The plaintiffs further presented evidence that

Jason owed $566,000 of principal on his line of credit in June and was

less than $10,000 from reaching his maximum on the line of credit.

Evidence also showed Jason listed his adjusted gross income was a loss of

more than $180,000 in 2014 on his federal tax return. He reported to the

Iowa Department of Revenue that his farm lost $190,000 that same year.

Additionally, Jason testified he knew he would inherit all of his parents’

land. The land was worth at least several million dollars. For these

reasons, we conclude that the evidence was sufficient at trial for a

reasonable mind to find by a preponderance of the evidence that Jason

D. First Motion to Vacate the Judgment or Grant a New Trial.

Jason claims the district court erred in denying his first petition to vacate

the judgment or grant a new trial on the basis of newly discovered

evidence. The majority of Jason’s newly discovered evidence consisted of

law enforcement’s investigative summaries of interviews with people who

purported to have information that Shirley was killed by burglars looking

for drugs. Jason argues that the newly discovered evidence points to entirely different parties as responsible for murdering Shirley.

Additionally, he claims it shows law enforcement was biased against him

and did a faulty investigation. The newly offered evidence also included

photographs of Jason assembling the gun safe and audio recordings of

Bill’s interviews with law enforcement regarding rigor mortis.

A court may vacate a final judgment or order, or grant a new trial

due to “[m]aterial evidence, newly discovered, which could not with

reasonable diligence have been discovered and produced at the trial, and 19

was not discovered within the time for moving for new trial under rule

1.1004.” Iowa R. Civ. P. 1.1012(6).

A party seeking a new trial on such grounds must demonstrate three things: (1) the evidence is newly discovered and could not, in the exercise of due diligence, have been discovered prior to the conclusion of the trial; (2) the evidence is material and not merely cumulative or impeaching; and (3) the evidence will probably change the result if a new trial is granted.

Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995) (citing In re D.W.,

385 N.W.2d 570, 583 (Iowa 1986)). “[T]he term ‘newly discovered evidence’ refers to facts existing at trial time of which the aggrieved party was then

excusably ignorant.” Wilkes v. Iowa State Highway Comm’n, 186 N.W.2d

604, 607 (Iowa 1971).

The district court determined that the evidence offered by Jason was

discovered after trial and could not have been discovered earlier. However,

the district court stated it was debatable whether the evidence was

material. It noted that much of the evidence offered was hearsay evidence

that could only be used to impeach witnesses and would not be used

substantively. Additionally, the district court noted that some of the

evidence Jason wished to offer was not material to the outcome of the case because of its inconsistency with other known facts. The district court

ultimately concluded that even if the newly discovered evidence were

material it would not change the outcome because virtually all of the

evidence was inadmissible hearsay. Jason contends the district court

erred by finding that the newly discovered evidence was inadmissible

hearsay and not material. He further argues the district court erred by failing to consider the effect of the plaintiffs’ discovery violations in ruling

on his petition for relief. 20

First, we address Jason’s contention that the question before a trial

court ruling on a petition to vacate the judgment or grant a new trial due

to newly discovered evidence is whether it is possible the new evidence

might have affected the outcome of the trial. Jason relies largely on a 1921

Iowa Supreme Court case that states if newly discovered evidence

“presents material facts germane to the issue in controversy, which,

considered with the evidence presented on the trial, might cause a jury to

take the other view, then the motion should be sustained.” Henderson v.

Edwards, 191 Iowa 871, 873, 183 N.W. 583, 584 (1921) (citing Dobberstein

v. Emmet County, 176 Iowa 96, 155 N.W. 815 (1916)). Jason notes that

the “might” standard was upheld in a 1956 case, Farmers Insurance

Exchange v. Moores, 247 Iowa 1181, 1190, 78 N.W.2d 518, 524–25 (1956).

However, that case goes on to clarify that “[i]t is also elementary that a new

trial should not be granted for newly discovered evidence unless a different

result . . . is reasonably probable.” Id. at 1190, 78 N.W.2d at 525 (quoting

Loughman v. Couchman, 243 Iowa 718, 720, 53 N.W.2d 286, 288 (1952)).

Our caselaw in more recent years has consistently followed the standard

that a movant for a new trial based on newly discovered evidence must

demonstrate that the new evidence will probably change the result if a new trial is granted. See, e.g., State v. Uranga, 950 N.W.2d 239, 243 (Iowa

2020); Tullis v. Merrill, 584 N.W.2d 236, 242 (Iowa 1998); Benson, 537

N.W.2d at 762; Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 804 (Iowa

1992); In re D.W., 385 N.W.2d at 583; Yoder v. Iowa Power & Light Co., 215

N.W.2d 328, 335 (Iowa 1974); State v. Compiano, 261 Iowa 509, 518, 154

N.W.2d 845, 850 (1967). That is the standard we follow today.

Second, we address whether the evidence Jason offers in the first

petition to vacate the judgment “is newly discovered and could not, in the 21

exercise of due diligence, have been discovered prior to the conclusion of

the trial.” Benson, 537 N.W.2d at 762.

The showing of diligence required “is that a reasonable effort was made.” The defendant is “not called upon to prove he sought evidence where he had no reason to apprehend any existed.” However, a defendant “must exhaust the probable sources of information concerning his case; he must use that of which he knows, and he must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered or developed.”

Uranga, 950 N.W.2d at 243 (citations omitted) (quoting Compiano, 261

Iowa at 519, 154 N.W.2d at 850). The district court determined that the DCI interview summaries were newly discovered and could not have been

produced at trial. The court reasoned that “[a]lthough defense counsel

had reason to know other persons were implicated in the murder, the

actual evidence of those allegations was not available to Jason at the time

of trial.” The district court also concluded that the evidence could not have

been discovered earlier by Jason because he did not have access to DCI’s

entire investigative file.

Exculpatory evidence that is unavailable, but known, at the time of

trial is not newly discovered evidence. Jones v. Scurr, 316 N.W.2d 905,

910 (Iowa 1982). We are not convinced Jason exhausted all probable sources of information concerning his case. An audio recording of a

meeting on November 28, 2017, with Jason’s counsel and Detective Reed

Kious shows Detective Kious told them information about his other

investigations on other people. He stated,

It’s always the story of either Joel [Followill], or his brother John, or some other person that’s involved in drugs in some way, burglarized Shirley’s house. The most believable one that I heard came from Adam Glover, and usually whenever somebody approaches me, and I won’t say usually, it is always when somebody approaches me, there’s something they want in return which is common for people in that lifestyle . . . . this Adam Glover said that he heard that Shirley had confronted 22 the burglars with the gun and that a struggle ensued, she was shot, and that the second shot was done to finish her off. And that this Joel Followill was part of it.

Detective Kious went on to explain several reasons why he did not find this

story believable. Jason argues this excerpt shows it was reasonable to

accept Detective Kious’s representation that one person had come forward

with this story, that it was not credible, and to move on. He also claims

in his brief that “no one provided Jason with the names of the Followills.”

We disagree. This recording shows that Jason’s counsel was aware before

trial that law enforcement had been approached more than once with

information on Shirley’s death and it is always a story involving Joel or

John Followill or someone else burglarizing the Carter’s home.

Jason asserts there was no point in attempting to obtain the DCI file

because DCI was clearly unwilling to provide the investigation file as

evidenced by its motion to quash the plaintiffs’ first subpoena. However,

after Jason was provided with a portion of DCI’s investigatory file, he made

no attempt to subpoena DCI for the balance of its investigative file or

specifically for interviews on other suspects. Jason claims he exercised

due diligence when his counsel later asked Detective Kious in the

November 28 meeting “if there was anybody else” other than Joe Tony Vrban and the Followill brothers.

Due diligence in the context of newly discovered evidence requires

that the movant exhaust all probable sources. The above question posed

to Detective Kious does not rise to that standard. Courts must require a

movant to show timely due diligence in the discovery of new evidence,

otherwise “newly discovered evidence might be withheld as trial strategy

to obtain a second trial if needed.” Compiano, 261 Iowa at 518, 154 N.W.2d

at 850. Because Jason did not make any attempts to obtain more 23

information from law enforcement or investigate leads for himself, he did

not exercise due diligence in timely discovering the evidence he now offers.

Third, we address Jason’s argument that the district court abused

its discretion in finding the evidence was not material because of its

inconsistency with other facts of the case. In determining that some of the

evidence was immaterial because of its inconsistency with the evidence at

trial, the district court noted that the experts for both the plaintiffs and for

Jason expressed the opinion that the person who shot Shirley was not a

burglar and the home was staged to look like a burglary. The court went

on to explain in its order on Jason’s petition to vacate the judgment that

virtually every story provided by Jason pointing to other suspects was

based on burglars going to Shirley’s home looking for prescription drugs

and ending up killing her. Thus, the district court determined the newly

discovered evidence was inconsistent from the evidence introduced at trial

in support of Jason’s theory of the case. In State v. Smith, we upheld a

district court’s decision that newly discovered evidence would not have

changed the outcome of the trial when the evidence “was not consistent

with defendant’s theory of the case.” 573 N.W.2d 14, 21–22 (Iowa 1997)

(explaining that defendant’s theory at trial was that he was present in the park where the shooting occurred but did not fire a gun, yet the newly

discovered evidence consisted of testimony that he was not seen at the

park at the time of the shooting). Some of the stories are also clearly

inconsistent with the crime scene. They state Shirley was beaten or put

in a pond before her death yet there were no signs of this on her body.

The district court did not abuse its discretion in determining the

statements Jason wished to offer to prove that burglars were responsible

for Shirley’s death that were clearly not true were not material to the

outcome in the trial. However, the district court ultimately denied Jason’s 24

petition to vacate the judgment or grant a new trial because it determined

the new evidence would not change the outcome. Therefore, we will focus

our review there.

Lastly, Jason argues the district court erred in determining the new

evidence would not change the outcome of the trial because most of it is

inadmissible hearsay. Hearsay is a statement that a declarant makes not

while testifying at the current hearing or trial and a party offers into

evidence to prove the truth of the matter asserted in the statement. Iowa

R. Evid. 5.801. Hearsay is normally inadmissible. Id. r. 5.802. The vast

majority of Jason’s newly discovered evidence consists of law

enforcement’s summaries of interviews of people who allege they spoke

with others who spoke with the alleged killers. Jason claimed in his

petition to vacate the judgment that the newly discovered evidence points

to entirely different parties as responsible for murdering Shirley. The

statements in the interview reports are clearly hearsay if they are being

offered to prove the truth of the matter asserted in the statements.

Jason’s claim that the reports meet the residual hearsay exception

is not persuasive. The residual exception to the hearsay rule provides:

a. In general. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in rule 5.803 or 5.804:

(1) The statement has equivalent circumstantial guarantees of trustworthiness;

(2) It is offered as evidence of a material fact;

(3) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) Admitting it will best serve the purposes of these rules and the interests of justice. 25

Id. r. 5.807(a). The first prong of rule 5.807 is not satisfied because the

statements contained in the interview reports Jason offers do not have

“equivalent circumstantial guarantees of trustworthiness” for several

reasons. The district court noted in its order denying Jason’s petition to

vacate the judgment that the information gleaned from the interviews is

widely unreliable and involves multiple levels of hearsay:

Despite claims by persons purportedly having spoken directly with people involved in the murder, neither the DCI nor the Marion County Sheriff’s Office were able to corroborate these allegations. Based on the evidence presented, the Court finds most of the individuals claiming to have information about Shirley Carter’s death were themselves incarcerated in the Marion County Jail or facing criminal charges and looking “to make a deal.” Much of the information investigators received from these individuals was incomplete, inconsistent with facts garnered from the crime scene, or refuted by ancillary interviews with people named during the initial interview.

The district court went on to say,

One individual repeatedly maintained he had or could get information about Shirley Carter’s murder. Facing his own criminal charges, this “informant” wanted the charges against him dismissed in exchange for what he knew or, at the very minimum, substantially reduced. He told investigators he had spoken with one of the murderers, he claimed there were two, and one of the alleged killers admitted to involvement in the murder. Upon further questioning, he back-peddled, saying the killer he spoke with did not “tell me, tell me” about committing the murder, but inferred involvement in the killing. This same “informant” told law enforcement the killers took Shirley down to the pond where they attempted to scare her in what can only be described as a “water boarding” incident. However, Shirley’s body was not wet nor damp when found and the medical examiner’s report does not suggest water was in any way related to her death. While this individual probably told the most implausible stories, his style was typical of others who sought to improve the person’s own situation by providing so-called information about Shirley Carter’s murder.

Upon our review of the interview summaries, we agree that most of the

information disclosed in them is uncorroborated, incomplete, refuted by 26

others, or implausible based on the known facts of Shirley’s death. Even

where the person speaking to law enforcement was noted as seeming

earnest, their statement often involved at least another level of hearsay,

meaning they heard it from someone who heard it from someone else. The

statements do not meet the reliability requirement for the residual

exception.

Furthermore, we are not persuaded that the seemingly large number

of reports pointing to other suspects alone would change the outcome of

the trial. Jason’s first petition to vacate the judgment included law

enforcement’s interview summaries with approximately fourteen different

people who suspected or heard the Followill brothers were involved in

Shirley’s death.2 However, some of the people that spoke with law

enforcement had the same person as their source of information. They all

appear to be from the same friend group or acquaintances of each other.

For these reasons, the district court did not abuse its discretion in

concluding the interview summaries would not have changed the outcome

of the trial.

Jason additionally argues that the statements in the investigative

reports are not hearsay because they would not be offered to prove the truth of the matter stated. Rather, Jason claims that he would offer the

evidence to show law enforcement’s investigation was faulty or failed

because it failed to interview certain leads. He also contends the evidence

shows law enforcement’s extreme bias and tunnel vision by ignoring

exculpatory evidence and unwillingness to consider other suspects. The

court noted that Jason’s new evidence shows law enforcement did in fact

2Some of the interviews occurred after judgment was rendered in the civil trial and

thus are not “newly discovered evidence” which existed at the time of trial. See Benson, 537 N.W.2d at 762–63 (considering subsequent events as newly discovered evidence only in extraordinary cases in which an “utter failure of justice will unequivocally result”). 27

consider other suspects. The new evidence mostly consisted of law

enforcement’s summaries of interviews with people alleged to have

information on other suspects, including polygraph results from someone

Jason had a dispute with prior to Shirley’s murder. Additionally, the

district court again emphasized that virtually all of the statements on other

suspects are varied stories of a burglary gone wrong, yet the evidence

presented by the plaintiffs as well as Jason in the civil trial was that the

burglary was staged. Ultimately, the district court concluded law

enforcement did a thorough investigation and “at some point, continuing

to interview individuals involved in the drug world with no first-hand

knowledge and whose story will contravene the facts from the crime scene

becomes problematic.” We are persuaded that the district court did not

abuse its discretion in determining the evidence, if offered to show law

enforcement’s bias or faulty investigation, probably would not change the

outcome at a new trial.

Finally, we address Jason’s claim that the district court erred by

failing to consider the effect of the plaintiffs’ nondisclosure of material

evidence. Jason alleges in the petition to vacate the judgment that the

plaintiffs were aware of exculpatory evidence before the civil trial and did not disclose it in discovery. He points to his civil deposition where the

plaintiffs’ counsel asked him about the Followill brothers and a woman

purported to have information. He also points to a Washington Post article

that states the plaintiffs’ counsel said they “had long been aware of the

other suspects from early in the investigation but said they were

discounted as possibilities based on ‘a complex analysis of lots of factors’ ”

and quotes the plaintiffs’ counsel as stating that “[t]here is nothing of

substance new to our side in this motion.” Iowa Man Accused in Mother’s

Death Points to Other Suspects, AP News, (May 31, 2018), 28

https://apnews.com/238963d3c54d412782e0d8b5d5b923ab#:~:text=Io

wa%20man%20accused%20in%20mother%E2%80%99s%20death%20po

ints%20to,another%20suspect%20shot%20her%20during%20a%20farm

house%20robbery [https://perma.cc/FQ8K-HBGK]. Jason also claims

the plaintiffs did not disclose photos Bill had in his basement of Jason

assembling the gun safe.

Contrary to Jason’s brief, the district court directly addressed the

alleged discovery violations in its ruling and order on Jason’s motion to

enlarge or amend its ruling on his petition to vacate the judgment.

Ultimately the district court found the plaintiffs’ counsel did not act

improperly because Jason never made any effort to pursue any of the

alleged discovery violations by filing a motion or requesting a hearing. See

Iowa R. Civ. P. 1.517(1) (“A party, upon reasonable notice to other parties

and all persons affected thereby, may move for an order compelling

disclosure or discovery . . . to compel a discovery response.”).

Apart from the fact that Jason never filed anything on the alleged

discovery violations, it is clear Jason was aware of other suspects before

the civil trial from an audio recording of an interview between Jason’s

counsel and a detective on Shirley’s case. The detective discussed the two names repeatedly brought up as Shirley’s killers in Jason’s newly

discovered evidence and the name of another person supposedly with

information. The detective further told Jason’s counsel that his

investigation on other suspects is always a story of someone involved in

drugs burglarizing Shirley’s house. Thus Jason’s claims that he had no

information about other suspects, was prejudiced by the plaintiffs’

nondisclosure, and would have completely changed his trial strategy but

for their nondisclosure cannot be given much weight. Furthermore, the

plaintiffs’ counsel’s statement to the press is not proof of a discovery 29

violation, rather it is an acknowledgement that they were aware of other

suspects (just as Jason was) and did not believe there was anything new

of substance in the law enforcement interview summaries that Jason was

now offering.

The district court concluded that the photos of Jason and the gun

safe would not change the result in a civil case, because the significance

of Jason’s fingerprints on the gun safe was not that they were there

without a reasonable explanation. An expert testified that Jason’s

fingerprints were consistent with an assembly of the gun safe. Bill also

maintained at trial that he believed Jason had given it to him as a gift in

the early 2000s. Rather, the significance of the fingerprint evidence was

that Jason had told law enforcement in an interrogation shortly after the

murder he had never touched the gun safe and did not even know his

parents owned one at the time of the murder. The district court

additionally determined that the recording offered by Jason of Bill’s

discussions with law enforcement regarding rigor mortis would not change

the result in a civil case. In the recording, Bill questions why law

enforcement is focusing on the family and states Shirley’s body was in

rigor mortis. The district court reasoned that the recording would not change the outcome of the case because Bill is not an expert on rigor

mortis, he lacks the training to offer an opinion on the subject, and he

sounded upset and frustrated. We cannot conclude the district court

abused its discretion in refusing to vacate the judgment or grant a new

trial on the basis of these alleged discovery violations or the newly

discovered evidence Jason offered.

E. Motion to Recuse. Jason filed a motion for recusal of the

district court judge who presided over the civil trial and Jason’s first

petition to vacate the judgment. At the time he filed the motion for recusal, 30

Jason’s motion to enlarge the district court’s order denying his first

petition to vacate the judgment and his second petition to vacate the

judgment were pending before the same judge. Jason’s motion for recusal

is based on two events he argues show prejudicial bias against him. Jason

provided an affidavit of an attorney that states she spoke to the judge

following Jason’s acquittal from his criminal trial and the judge told her

“Jason Carter was guilty as sin.” Jason provided another affidavit of an

individual that states he attended portions of Jason’s civil trial and during

the trial witnessed the judge, the plaintiffs’ attorneys, and the county

attorney who charged Jason with murder speaking alone in the library of

the courtroom without Jason’s attorneys present.

“A judge shall disqualify himself or herself in any proceeding in

which the judge’s impartiality might reasonably be questioned . . . .” Iowa

Code of Judicial Conduct R. 51:2.11(A); see also Iowa Code

§ 602.1606(1)(a) (2020) (“A judicial officer is disqualified from acting in a

proceeding . . . if . . . [t]he judicial officer has a personal bias or prejudice

concerning a party.”). The Iowa Code of Judicial Conduct, Terminology,

defines impartiality as “absence of bias or prejudice in favor of, or against,

particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” Actual

prejudice must be shown before recusal is necessary, and speculation is

not sufficient. State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). The test

is “whether reasonable persons with knowledge of all facts would conclude

that the judge’s impartiality might reasonably be questioned.” State v.

Mann, 512 N.W.2d 528, 532 (Iowa 1994). The party seeking

disqualification must show that the judge’s “alleged bias and prejudice

must stem from an extrajudicial source and result in an opinion on the

merits on some basis other than what the judge learned from participation 31

in the case.” State v. Bear, 452 N.W.2d 430, 435 (Iowa 1990); see also

State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982) (determining judge’s

statement that defendant “was guilty of something” was based on

reviewing the minutes of testimony and was not from an extrajudicial

source); State v. Smith, 242 N.W.2d 320, 324 (Iowa 1976) (“[O]nly personal

bias or prejudice, as distinguished from judicial predilection, constitutes

a disqualifying factor.”).

Jason has not offered any evidence that the judge’s alleged bias

stems from an extrajudicial source. Additionally, Jason does not claim

any biased conduct of the judge during the course of the trial, the hearing

on his first petition to vacate the judgment, or in the rulings on Jason’s

posttrial motions. The district court’s order denying the motion provides

in part:

Any opinion formed by this Court was formed only after hearing the evidence. This Court received no extrajudicial information and had no contacts with persons that influenced its ability to be impartial. Further, this Court prides itself on being even-handed with all parties during any proceeding and Jason Carter’s trial was no exception.

The district court further noted that at the time of the alleged statement

to the lawyer who provided an affidavit, the district court had already ruled on Jason’s first petition to vacate the judgment, which was prior to the

criminal trial.

Jason additionally has not alleged any prejudice that has resulted

to him from the conversation the judge is alleged to have had in the

courtroom library with the plaintiffs’ counsel and the county attorney. See

State v. Lemburg, 257 N.W.2d 39, 46 (Iowa 1977) (determining the record

did not show any basis to disqualify the judge when ex parte discussions

were limited to matters of security at trial and did not concern a pending

or impending proceeding). The judge stated in her order: 32 [T]his court would not and did not discuss anything about the pending civil case without involving both sides. The rules do not prohibit talking to attorneys ever, just in those situations where there is discussion of a pending or impeding matter before the court. That did not occur here. Defendant’s attempt to imply a conspiracy among Plaintiffs’ counsel, the county attorney, and this Court is unsupported by any facts and farfetched.

“[T]here is as much obligation for a judge not to recuse when there

is no occasion for him to do so as there is for him to do so when there is”

because of the “ever mounting sea of litigation.” Mann, 512 N.W.2d at 532

(first quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (per curiam); then quoting Brody v. President & Fellows of Harvard Coll., 664

F.2d 10, 12 (1st Cir. 1981) (per curiam)). The civil trial lasted two weeks

and the proceedings on Jason’s first petition to vacate the judgment lasted

two and a half days. A new judge assigned to the case would cause

additional delay. The judge’s rulings and orders filed in this case were

thorough and based in the law. We decline to hold that the district court

abused its discretion in denying Jason’s motion to recuse.

F. Second Petition to Vacate the Judgment or Grant a New

Trial. The final issue we must decide is whether the district court erred

by dismissing Jason’s second petition to vacate the judgment based on newly discovered evidence because it was filed outside the one-year

limitation in Iowa Rule of Civil Procedure 1.1013.3 Jason’s second petition

to vacate the judgment was filed under Iowa Rules of Civil Procedure

1.1012 and 1.1013. The official comments to Rule 1.1013 state:

Rule 253 [now 1.1013] limits the time for filing the petition under Rule 252 [now Rule 1.1012]. Such time is jurisdictional; the court being without power to entertain a

3“A petition for relief under rule 1.1012 . . . must be filed and served in the original action within one year after the entry of the judgment or order involved.” Iowa R. Civ. P. 1.1013(1). 33 petition filed thereafter: Kern v. [Woodbury County], 234 Iowa 1321, 14 N.W.2d 687. Nothing can extend the time.

Iowa R. Civ. P. 1013 cmt. (first and second alterations in original). Jason

claims the district court erred in refusing to apply doctrine of equitable

tolling to his petition to vacate the judgment. Equitable tolling is

appropriate in particular cases, but policy underpinnings of certain

statutes, such as jurisdictional statutes of limitations, weigh against

application of equitable tolling doctrines. Mormann, 913 N.W.2d at 569

(citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451–53 (7th Cir.

1990)) (explaining that the Iowa Civil Rights Act does not have underlying policy rationales that cut against the application of equitable tolling unlike

other certain statutes).

Jason points to Sorenson v. Sorenson, 254 Iowa 817, 119 N.W.2d

129 (1963) for support that the court may apply doctrine of equitable

tolling to his second petition to vacate the judgment. In Sorenson, we

explained that courts of equity may grant new trials independently of the

statute of limitations set out in statutes and rules like rule 1.1013 when

the grounds for the motion were not discovered within the year and the

fraud authorizing the granting of a new trial was extrinsic or collateral to the matter directly involved in the original case. Id. at 825, 134. The

difference between Jason and the movant in Sorenson is that the movant

there did not, and could not, file his motion to vacate the decree under

rule 1.1013. Sorenson, 254 Iowa at 824–25, 119 N.W.2d at 133–34

(“Defendant cannot bring himself within the provisions of rules [1.1012]

and [1.1013] because he did not act within the one-year limit therein

provided . . . .”). Instead, the movant sought to vacate or modify the decree

upon equitable grounds. Id. We noted in City of Chariton v. J. C. Blunk

Construction Co., 253 Iowa 805, 821, 112 N.W.2d 829, 837 (1962), that we 34

have a string of cases that treat a petition to set aside a judgment on the

ground of fraud not discovered until past the one-year period allowed by

rules 1.1012 and 1.1013 as being a collateral attack on the judgment. We

stated that “it is collateral only in that it is not brought in the original

proceeding but is an independent action in equity.” Id. Thus, those cases

are likewise distinguishable from the present case since Jason did not

bring an independent action in equity.

We made it clear in In re Marriage of Fairall, 403 N.W.2d 785, 788

(Iowa 1987), that a petition filed under rules 1.1012 and 1.1013 must be

filed within a year:

District court authority in these situations cannot be conferred by consent, waiver, or estoppel. Accordingly, we have stated: “Jurisdiction does not attach, nor is it lost, on equitable principles. It is purely a matter of statute.” It follows that a petitioner seeking relief under rule [1.1012] bears the burden to follow the prescribed procedural steps of rule [1.1013] necessary to keep his or her post-judgment rights alive.

We thus hold that to invoke the power of the district court to correct, vacate, or modify a final judgment or order through a rule 252 petition, the petition must be filed and the notice must be served within one year as required by rule 253.

(citations omitted) (quoting BHC Co. v. Bd. of Review, 351 N.W.2d 523, 526 (Iowa 1984)). We affirm this holding and conclude the district court lacked

jurisdiction to hear Jason’s second petition for relief because it was not

filed within one year of the judgment as required by rule 1.1013.

IV. Conclusion.

For these reasons we affirm the judgment against Jason Carter.

AFFIRMED.

All justices concur except Appel and Mansfield, JJ., who take no

part.