Opinion
No. 1-1009 / 00-2001.
Filed June 19, 2002.
Appeal from the Iowa District Court for Marshall County, DALE E. RUIGH, Judge.
The plaintiffs appeal following a judgment in favor of the defendant. AFFIRMED.
Eric Parrish of Parrish, Kruidenier, Moss, Dunn Montgomery, Des Moines, for appellant.
Paul Peglow of Johnson, Sudenga, Latham, Peglow O'Hare, P.L.C., Marshalltown, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
The plaintiffs appeal following a judgment in favor of the defendant. Finding that error has not been preserved, we affirm.
Linda Harrington and her brother, Duane Harrington, ("the Harringtons") own a home they inherited from their mother, Nina, who died in 1993, and their father, who had died earlier. Their uncle, George Smith, acted as executor of Nina's estate. As executor Smith was represented by attorney Joe Latham of the law firm of Johnson, Sudenga, Latham, Peglow O'Hare ("the Johnson law firm"). Smith, with the assistance of the Johnson law firm, prepared a probate inventory. Linda, as a beneficiary of her mother's estate, received a copy of the inventory, was aware values were kept low to minimize death taxes, and purchased household furniture, furnishings and appliances, a lawn mower, and two older automobiles for $4500, their inventoried value.
The Harringtons' parents had insured their home through defendant Iowa Valley Mutual Insurance Association ("Iowa Valley"). The Harringtons continued to do so. In 1997 their home was broken into. Some damage occurred and some rooms were ransacked. Numerous witnesses estimated damages to be anywhere from about $1000 to $3000. The Harringtons claimed damages of $161,000. They rejected Iowa Valley's offer to settle the claim and brought suit. Iowa Valley was represented by attorney Paul Peglow of the Johnson law firm. The jury returned a verdict in favor of Iowa Valley. The Harringtons appealed. They claim the trial court violated their rights to due process of law by failing to conduct an inquiry into a conflict of interest resulting from the Johnson law firm's representation of both them and Iowa Valley.
Both parties assert our review is de novo because a constitutional issue of due process of law is raised. Although we question whether a claim of conflict of interest on the part of opposing counsel in a civil action involving only money damages raises a genuine issue of due process of law, we will assume the scope of our review is in fact de novo.
The Harringtons' due process claim is grounded on an underlying claim that by its "dual representation of the Harringtons and Iowa Valley" the Johnson law firm had a conflict of interest. Their claim of "dual representation," to the extent it might arguably by supported by the record, is based on the Johnson law firm's representation of Iowa Valley in this litigation after having represented their mother's executor in administering her estate several years earlier. The Harringtons were clearly well aware of both such representations during trial court proceedings in this case.
We require error preservation, even on constitutional issues. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999); see also Soo Line R.R. Co. v. Iowa Dep't of Transp., 521 N.W.2d 685, 688 (Iowa 1994) (same-judicial review of agency action in contested case); Thiele v. Whittenbaugh 291 N.W.2d 324, 327 (Iowa 1980) (same-partition action); Commission on Prof'l Ethics Conduct v. Randall, 285 N.W.2d 161, 165 (Iowa 1979) (same-attorney disciplinary proceeding); In re C.D., 508 N.W.2d 97, 100 (Iowa Ct.App. 1993) (same-termination of parental rights).
Our rules of appellate procedure require an appellant's brief to state how an issue was preserved for review, with appropriate references to places in the record where the issue was raised and decided. Iowa R. App. P. 6.14(1)(f). The Harringtons' brief does not do so. They do cite State v. Watson, 620 N.W.2d 233 (Iowa 2000) in support of their request for reversal or remand. Watson held that in a criminal case a trial court has a duty to inquire into the propriety of defense counsel's representation when it knows or reasonably should know of a conflict of interest, and if the trial court failed to make the required inquiry reversal of a resulting conviction is required if an actual conflict existed and remand is required if the record shows only the possibility of a conflict. Watson, 620 N.W.2d at 238.
Watson, and cases decided by the Supreme Court and cited in Watson, are based on a criminal defendant's rights to the assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. That right is a right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). Similarly, due process requires counsel appointed under a statutory directive to provide effective assistance. In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); see also Dunbar v. State, 515 N.W.2d 12, 14 (1994) (holding that the right to appointed counsel in a postconviction proceeding necessarily implies that counsel be effective). A conflict of interest may deprive a defendant of effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467-68, 86 L.Ed. 680, 702 (1942), superseded by statute/rule on other grounds by Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct., 2775, 2781, 97 L.Ed.2d 144, 156 (1987); see also Connor v. State, 630 N.W.2d 846, 849 (Iowa Ct.App. 2001) (stating a conflict of interest is a burden to effective assistance).
Cases that allow conflict of interest claims to be raised on appeal without preserving error are thus based on the right to effective assistance of counsel under either a constitutional right to counsel or a statutory right to appointed counsel. However, the present case involves neither. The Harringtons have neither cited authority nor presented reasoned argument for extending and applying concepts of ineffective assistance of counsel to cases such as this case. We decline to do so.
We need not consider whether there is any substantive merit to the Harringtons' claim that the Johnson law firm had a conflict of interest by representing Iowa Valley in this case after having represented the executor of their mother's estate many years earlier. The normal rules of error preservation apply in this case. The Harringtons have not preserved error on the issue they present on appeal. We affirm the trial court judgment.
AFFIRMED.