In the Matter of the Estate of Richard D. Janssen

IN THE COURT OF APPEALS OF IOWA
_______________

No. 25-0672
Filed April 1, 2026
_______________

In the Matter of the Estate of Richard D. Janssen, Deceased.
Gary Dean Janssen and Larry Dale Janssen,
Plaintiffs-Appellants/Cross-Appellees,
v.
The Security National Bank of Sioux City, as Executor of the Estate of
Richard D. Janssen, and Sheryl Ann Collins, Individually,
Defendants-Appellees/Cross-Appellants.
_______________

Appeal from the Iowa District Court for Woodbury County,
The Honorable Zachary Hindman, Judge.
_______________

AFFIRMED ON APPEAL AND CROSS-APPEAL
_______________

Tyler M. Smith (argued) of Smith Law Firm, PLC, Altoona, and Alexander
E. Wonio of Hansen, McClintock & Riley, Des Moines, attorneys for
appellants/cross-appellees.

Ryland Deinert (argued) of Klass Law Firm, LLP, Sioux City, attorney for
appellee/cross-appellant Collins.

Colby M. Lessmann of Tigges, Bottaro & Lessmann, LLP, Sioux City,
attorney for appellee/cross-appellant Security National Bank of Sioux City.
_______________

1
Heard at oral argument
by Ahlers, P.J., Buller, J., and Doyle, S.J.
Opinion by Doyle, S.J.

2
DOYLE, Senior Judge.

This appeal follows a protracted will contest that has resulted in
multiple trials due to an initial mistrial and included our supreme court’s
reversal of the district court’s order for a new, third trial following one of the
defendants’ posttrial motion to dismiss. The plaintiff brothers, Gary Janssen
and Larry Janssen, now appeal again, raising several purported errors in the
district court’s order regarding posttrial motions. Sheryl Collins, a defendant
and sister of the Janssen brothers, cross-appeals, arguing the district court
erred in not granting her motion for new trial based upon “irregularities and
misconduct” by Gary and Larry’s counsel.1 Agreeing with the district
court’s thorough and well-reasoned order, we affirm the district court on
both appeals.

BACKGROUND FACTS AND PROCEEDINGS 2
The testator, widower Richard Janssen, died on June 28, 2018. Earlier
that same year, Sheryl had arranged for Richard to meet with an attorney on
April 20. After meeting with the attorney, Richard signed a new will. The
terms of this will departed significantly from prior wills Richard had
executed. The 2018 will was admitted to probate and Security National Bank
of Sioux City (SNB) was appointed executor. Gary and Larry, along with
their two other brothers, Dean and Jeff, filed a will contest against Sheryl,

1
As our supreme court did in In re Estate of Janssen, 7 N.W.3d 516, 518 n.1
(Iowa 2024), “[w]e refer to the parties by their first names throughout the rest of [this]
opinion for ease of understanding and mean no disrespect to the parties.” The other
defendant and executor of the contested will, Security National Bank, joins Sheryl’s cross-
appeal.
2
The background facts and proceedings are set forth in greater detail in Janssen. 7
N.W.3d at 518–20.

3
their other sister Debra Schultz, and executor SNB. The brothers alleged
Richard’s lack of testamentary capacity, undue influence by Sheryl and
Debra, and tortious interference with inheritance by Sheryl and Debra. The
2019 trial resulted in a mistrial due to a hung jury.

Shortly before the second trial, Dean and Jeff removed themselves as
parties by voluntarily dismissing their claims. In June 2021, the district court
granted Gary and Larry’s motion to bifurcate, ordering:
[T]he issue of calculation of the amount of attorney fees, executor fees,
and estate fees which [Gary and Larry] are entitled to recover, in the event
that [Gary and Larry] prevail on the tortious interference with inheritance
claim, shall not be presented to the jury, and shall not be resolved by the
jury. Rather, in the event that [Gary and Larry] prevail on that claim, a
separate, later evidentiary hearing shall be held before the Court.

The day before the second trial began, Gary and Larry moved to dismiss their
testamentary-capacity claim and “all claims” against Debra, which the
district court granted without objection, leaving only a will contest premised
on undue influence and a tort claim against Sheryl for intentional interference
with inheritance. The second trial ended in July 2021. The jury concluded
that Sheryl had engaged in undue influence and found that the 2018 will
resulted from Sheryl’s tortious interference. The jury further found that
Gary and Larry had suffered $480,000 in compensatory damages and
awarded them $2 in punitive damages.

The parties filed posttrial motions, including Sheryl’s motion for new
trial for failure to join an indispensable party—Debra, who had been
voluntarily dismissed as a defendant before the second trial. The district
court granted Sheryl’s motion for new trial, and Gary and Larry appealed
that order. Our supreme court reversed the trial court’s order, holding that
an indispensable party need not remain joined until final judgment to fulfill

4
the requirements of Iowa Code section 633.312 (2018) if that party has
“affirmatively agree[d] to be dismissed” from the will contest. See Janssen, 7
N.W.3d at 525–26.

Trial on the bifurcated damages issue and a hearing on unresolved
post-trial motions took place in August 2024. Thereafter, the district court
entered a 112-page Findings of Fact, Conclusions of Law, and Order/Order
Re: Post-Trial Motions. Gary and Larry now appeal, and Sheryl and SNB
cross appeal.

STANDARD OF REVIEW
We review an action to set aside a will for errors at law. In re Est. of
Bayer, 574 N.W.2d 667, 670 (Iowa 1998). Tortious interference with a bequest
is also an action at law. See Frohwein v. Haesemeyer, 264 N.W.2d 792, 795
(Iowa 1978), overruled in part on other grounds by Youngblut v. Youngblut, 945
N.W.2d 25 , 37 (Iowa 2020).

We review denials of motions for new trial based on misconduct for
abuse of discretion. See Fry v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012).
Denial of a motion for new trial on the basis the award was inadequate is
reviewed for abuse of discretion. Fisher v. Davis, 601 N.W.2d 54, 57
(Iowa 1999). Likewise, we review the refusal to grant an additur for abuse of
discretion. Kerndt v. Rolling Hills Nat’l Bank, 558 N.W.2d 410, 417
(Iowa 1997).

DISCUSSION
Gary and Larry argue the district court erred in (1) denying their claim
for their attorney fees and expenses incurred in contesting Richard’s 2018
will; (2) annulling the jury’s award of $480,000 in compensatory damages
for tortious interference; (3) denying their motion for additur to increase the

5
jury’s compensatory damages award to $2,431,271.33; (4) denying their
motion for additur or new trial on the jury’s award of punitive damages; and
(5) approving SNB’s executor fees and attorney fees, ordering them to be
paid by Richard’s estate, and declining to charge the fees to Sheryl. Sheryl
and SNB cross appeal, arguing the district court abused its discretion in
denying Sheryl’s motion for new trial based on Gary and Larry’s counsel’s
purported misconduct during trial. We address each issue in turn.

I. Attorney Fees and Expenses

Gary and Larry argue they are entitled to attorney fees and expenses
“because they are compensatory damages on the tort claim.”

Attorney fees are recoverable as consequential damages in tortious-
interference-with-inheritance actions. Huffey v. Lea, 491 N.W.2d 518, 522
(Iowa 1992), overruled in part on other grounds by Youngblut, 945 N.W.2d at 37.
“[A] person who, through the tort of another, has been required to act in the
protection of his interests by bringing or defending an action against a third
person is entitled to recover compensation from the tortfeasor for
expenditures thereby incurred.” Kimmel v. Iowa Realty Co., 339 N.W.2d 374,
380 (Iowa 1983). Attorney fees resulting as “a natural consequence of the
tort” are recoverable. See id.

As the district court observed, we have affirmed the tortious-
interference-claim portions of attorney fee awards in recent years. See, e.g.,
In re Est. of Erickson, No. 17-0430, 2018 WL 3471093, at *1, *3 (Iowa Ct. App.
July 18, 2018) (affirming attorney fee award to prevailing party on tortious-
interference-with-a-bequest claim and noting the district court’s
“considerable discretion in taxing fees”); Bronner v. Randall, No. 14–0154,
2015 WL 2089360, at *9–10, *9 n.6 (Iowa Ct. App. May 6, 2015) (observing
that recoverable attorney fees are limited “the fees incurred trying to correct

6
or remedy the tortious action of the defendant, not the fees incurred in suing
the defendant for tortious interference”).

The district court found that Gary and Larry “may recover, as
damages, attorney fees that they incurred in litigating their will contest, so
long as their involvement in the will contest was caused by Sheryl’s tortious
conduct, and to the extent that the attorney fees they seek are reasonable.”
So the district court was faced with the task of determining whether Gary
and Larry’s claimed attorney fees were “in whole or in part” based on
Sheryl’s tortious conduct. See Worth v. Pierson, 223 N.W. 752, 755
(Iowa 1929) (“Fraud [and] undue influence are two separate grounds for the
setting aside of a will.” (cleaned up)). But it is sometimes difficult to separate
the undue-influence claims in a will contest from the tortious-interference
claims since “there usually is some fraud present in a pure case of undue
influence.” See id.

Thus, the district court found that based on the facts of this case, the
jury could have determined that the 2018 will was the result of both undue
influence and fraud. Yet Gary and Larry’s motion to bifurcate made no
request that the district court “determine[] the scope of Sheryl’s tortious
conduct, including for the purpose of deciding whether that tortious conduct
was a cause of the will contest.” Consequently, the district court observed
that it “has no way of knowing whether, as a factual matter, there exists a
causal connection running from the particular fraud to the particular undue
influence already found by the jury to have occurred in this case.” As the
court noted, such a determination would require it to speculate “among all
of the ways the jury possibly could have decided that the essential elements
of that claim were satisfied.” That said, the district court determined Gary
and Larry had a good-faith basis to bring their claims based on Sheryl’s

7
tortious acts, and they may recover their attorney fees. See Turner v. Zip
Motors, Inc., 65 N.W.2d 427, 431 (Iowa 1954) (“[I]f through the tort of A, B
is in good faith involved in litigation with C, . . . B may then recover the
reasonable value of his expense for employment of counsel . . . from A.”).

But ultimately, the district court declined to award Gary and Larry
their attorney fees due to general and imprecise fee and expense
documentation submitted. The court specifically noted that Gary and
Larry’s attorney failed to “set[] forth with any precision the number of hours
that the attorneys spent on this case” or “distinguish[] time spent by the
attorneys’ work on matters relating to the portion of the will contest alleging
undue influence by Sheryl, as opposed to work performed solely in relation
to other claims or former claims.” A billing affidavit was submitted which
asserted $8,286.94 in expenses and costs were advanced, but the referenced
itemization was missing. Counsel further cited time used preparing a
proposed ruling that was never filed, and estimated 1,200 attorney hours and
300 staff hours were spent.

Due to counsel’s general and conclusory claims relating to the time
and money spent on litigating the case, including questions over the specific
terms of the contingent-fee arrangement3 between Gary and Larry and their
counsel, the district court found it impossible to accurately assess the amount
of fees attributable to the undue-influence claims. We agree. Because
recoverable attorney fees here are an exception to the general rule that
“attorney fees are recoverable only by statute or under a contract,” see In re
Guardianship of Radda, 955 N.W.2d 203, 214 (Iowa 2021) (citation omitted),
it was incumbent upon Gary and Larry to delineate how their counsel’s time

3
No written fee contract was made part of the record.

8
was billed. The district court did not err in declining to speculate as to how
attorney time was spent or to the specific terms of the contingent-fee
arrangement.

II. Annulment of Compensatory-Damages Award

Sheryl moved to strike the jury’s award of $480,000 in compensatory
damages, arguing the award was duplicative. Because Gary and Larry
prevailed in the will contest, Sheryl argued their respective portions of
Richard’s estate under his prior 2014 will exceed the $480,000
compensatory-damages award. The district court agreed and set aside the
compensatory-damages award, citing our decision in Bronner as the closest
factual comparison to the compensatory-damages issue here. See 2015
WL 2089360, at *15 (vacating jury award of $22,706.55 loss of expectancy
from an investment account when reinstatement of prior beneficiary
designation provided for the plaintiff’s right to $22,706.55 from that
investment account). Our supreme court has recognized that trial courts may
apply remittitur to resolve issues of duplication of damages. See Nassen v.
Nat’l States Ins. Co., 494 N.W.2d 231, 237 n.2 (Iowa 1992); see also Team Cent.,
Inc. v. Teamco, Inc., 271 N.W.2d 914, 924–25 (Iowa 1978) (“Setting aside the
judgment . . . as duplicative . . . was proper.”).

Gary and Larry argue that the district court should have instead
deferred entry of judgment on the $480,000 compensatory-damages award
pending resolution of probate on the 2014 will, since the 2014 will is only
presumptively valid following the 2018 will being set aside. But the district
court addressed this possible resolution, determining it unnecessary since
the parties all agreed the compensatory-damages award was duplicative.
Gary and Larry contend there was no such agreement, but their counsel
suggested otherwise before closing arguments for punitive damages, stating

9
that “[e]verybody agrees that [the $480,000 award is] going to be remitted,
it’s going to be consumed by the estate.” Because the compensatory-damages
award was duplicative and the parties agreed to such, the district court did
not error in setting aside and in not entering judgment on the jury award for
compensatory damages on Gary and Larry’s tortious-interference-with-
inheritance claim.

III. Additur to Compensatory-Damages Award

Gary and Larry moved for additur on compensatory damages,
requesting an increase from $480,000 to $2,431,271.33, asserting that the
parties agreed that the damages resulting from tortious interference was the
latter figure. The district court declined to do so, concluding the
compensatory-damages award was consistent with the evidence presented at
trial.

“The district court may permit a party to avoid a new trial under
rule 1.1003 or 1.1004 by agreeing to such terms or conditions as it may
impose,” which may include “a choice between consenting to a reduced,
modified or increased judgment amount or proceeding to a new trial.” Iowa
R. Civ. P. 1.1010(1)–(2). But “[n]either the district court, nor this court,
should disturb the jury’s verdict unless it is flagrantly excessive or inadequate
or so out of reason so as to shock the conscience.” Vagts v. N. Nat. Gas Co., 8
N.W.3d 501, 520 (Iowa 2024). We give “great weight” to the jury’s damages
award. Id.

Like the district court, we decline to apply additur to the damages
award. As the court explained, “[t]he total value of [the] estate, according to
the inventory that is in evidence . . . is $2,882,692.66.” If split six ways, that
would amount to a roughly $480,000 disposition per child. While this
suggests that the jury should have awarded each brother $480,000, the court

10
observed that the jury may have taken into account the unequal disposition
of the estate of Richard’s pre-deceased wife and the possibility that Sheryl
may have “legitimately persuaded Richard” to consider that unequal
disposition, thus reducing his bequest to Gary and Larry by half. Gary and
Larry argue this is speculation by the district court, but it is likewise
speculation to assume, without further context or explanation, that the jury
erred in its damage calculations. The district court’s reasoning for deciding
against additur was sound and persuades us that the jury’s award was not
“flagrantly . . . inadequate.” See id.

IV. Additur or New Trial on Punitive-Damages Award

Gary and Larry moved for additur or new trial based on inadequate
punitive damages. The jury awarded two dollars in punitive damages. Gary
and Larry contend the inadequate damages stem from the jury’s
misunderstanding of the law, insufficient evidence, or other error.

We decline to modify or vacate the district court’s ruling on additur to
the punitive-damages award. Gary and Larry suggest that the jury
misunderstood the concept of punitive damages because they asked a
question about the meaning of the term “in terrorem” during their
deliberations. That term was found in the 2014 will and reduces a will
beneficiary’s disposition to one dollar if they contest the will. If the jury truly
and mistakenly believed that the in terrorem clause under the 2014 will had
been triggered, it is unclear why they would also award Gary and Larry
$480,000 in compensatory damages. Nor is there any evidence that the jury
misunderstood the punitive damages—the jury instructions expressly
described the difference between compensatory and punitive damages.
Lastly, Gary and Larry cite no authority for their claim that a defendant’s
failure to express regret makes punitive damages required as a matter of law.

11
We do not find that failure informative as to Sheryl’s state of mind at the time
she committed the tort. See Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d
369, 378 (Iowa 1997) (“To support an award of punitive damages, the tort
must be committed with either actual or legal malice.”) We concur with the
district court’s ruling on this issue.

V. Assessment of Executor Fees and Expenses

Gary and Larry finally contend that the district court erred in assessing
executor fees and expenses to the estate rather than to Sheryl.

When an executor “defends or prosecutes any proceedings in good
faith and with just cause, whether successful or not, that [executor] shall be
allowed out of the estate necessary expenses and disbursements, including
reasonable attorney fees in such proceedings.” Iowa Code § 633.315. “[T]he
executor carries the burden of proving [that] he or she acted in good faith and
with just cause in engaging in the proceedings” for which attorney fees are
sought. In re Est. of Wulf, 526 N.W.2d 154, 156 (Iowa 1994).

The district court determined SNB’s requested executor and attorney
fees were reasonable and incurred in good faith. Gary and Larry largely argue
that SNB’s participation was not in good faith due to SNB siding with Sheryl
rather than them on most issues. But as the district court points out, SNB
and Sheryl’s interests “overlapped to a considerable degree.” And to the
extent SNB participated beyond what was necessary, e.g., Gary and Larry’s
tort claim, the district court expressly excluded those fees from the fees to be
paid by the estate. We affirm the district court’s assessment of executor fees
and expenses.

12
VI. Motion for New Trial

Sheryl contends the district court abused its discretion in dismissing
her motion for new trial because Gary and Larry’s counsel’s misconduct
“caused an unfair and prejudicial trial” against them.

Even where an attorney has engaged in offensive conduct, a new trial
is appropriate only when “a different result would have been probable in the
absence of misconduct.” Olson v. BNSF Ry. Co., 999 N.W.2d 289, 300
(Iowa 2023) (citation omitted). So reversal of a denial of a new trial based on
misconduct requires a showing of both misconduct and prejudice resulting
from that misconduct. See id. Trial courts have broad, but not unlimited,
discretion in determining whether such misconduct was prejudicial. Loehr v.
Mettille, 806 N.W.2d 270, 277 (Iowa 2011). “We have long recognized that
trial judges’ advantageous point of view” requires that their determinations
“be given significant weight” since our “analysis is confined to words written
on a page.” Olson, 999 N.W.2d at 300. But for a motion for new trial based on
misconduct to be granted, the moving party must file a timely objection. See
State v. Phillips, 226 N.W.2d 16, 18–19 (Iowa 1975). Failure to timely object or
move for mistrial “before submission of the case to the jury . . . constitutes a
waiver of the misconduct.” Id.

As the district court observed, as to closing arguments, Sheryl
neither objected to the alleged misconduct about which she now
complains, at the time of that conduct, nor requested a mistrial or other
action of the Court before [Gary and Larry’s] claims were submitted to the
jury. Instead, she opted to address the issue in her own closing, in an
apparent attempt to undermine the credibility with the jury of [Gary and
Larry] and their counsel.

On appeal, Sheryl argues that attorney statements during closing
arguments can be “so flagrantly improper and evidently prejudicial” as to

13
warrant a new trial even in the absence of an objection. See Buboltz v.
Birusingh, 962 N.W.2d 747, 759 (Iowa 2021). We agree with the district court
that Sheryl made the strategic choice to address the statements by opposing
counsel in her own closing argument. Our error-preservation rules exist in
part to prevent parties from choosing silence “in the face of error, tak[ing] a
chance on a favorable outcome, and subsequently assert[ing] error on appeal
if the outcome in the trial court is unfavorable.” State v. Crawford, 972
N.W.2d 189, 199 (Iowa 2022). Sheryl’s choice to address the statements in
her own closing reflect this conscious choice.

But Sheryl did object to what she characterizes as an improperly
spliced audio recording that Gary and Larry’s counsel played for the jury
during closing arguments. Counsel played audio recordings for the jury that
were spliced to play different portions of single recording.

Sheryl fails to identify how any alleged misconduct was prejudicial to
the extent that it was “flagrantly improper.” See Buboltz, 962 N.W.2d at 759;
State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998) (“Mere general assertions
of prejudice are not sufficient.”). Indeed, the jury was expressly informed
upon Sheryl’s objection—if it was not already clear—that the audio being
played for them had been condensed. And the court told the jury to rely on
their own recollection of the evidence and their own review of the evidence.

Error is not preserved on any challenged statements which were not
timely objected to, and Sheryl has failed to identify prejudice on any other
challenged statement.

CONCLUSION
Upon our review, we affirm the district court’s order on Gary and
Larry’s appeal. We also find no abuse of discretion in the district court’s

14
denial of Sheryl’s motion for new trial and affirm on Sheryl’s and SNB’s
cross-appeal.

AFFIRMED ON APPEAL AND CROSS-APPEAL.

15