Mary Elizabeth Slezak v. Carl W. Matherly

IN THE COURT OF APPEALS OF IOWA

No. 20-0836
Filed August 18, 2021

MARY ELIZABETH SLEZAK,
Plaintiff-Appellee,

vs.

CARL W. MATHERLY,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.

Carl Matherly appeals the enforcement of a settlement agreement for

attorney fees and a cost assessment. AFFIRMED.

Shaun Thompson of Newman Thompson & Gray PC, Forest City, for

appellant.

Joseph G. Gamble and Tara J. Higgins of Duncan Green, P.C., Des Moines,

for appellee.

Considered by Mullins, P.J., and Vogel and Doyle, S.J.J.* Gamble, S.J.,

takes no part.

*Senior judges assigned by order pursuant to Iowa Code section 602.9206

(2021).
2

MULLINS, Presiding Judge.

Carl Matherly appeals the enforcement of a settlement agreement for

attorney fees and assessment of costs.1 Carl argues the district court erred in

reducing the fee in the settlement agreement because the initial payment was not

related to the sale of relevant farmland and because Mary Elizabeth Slezak

(MaryBeth) failed to address the lien directly.2

I. Background Facts and Proceedings

The issues presented in this appeal stem from a long, bitter family dispute.

The facts of the Matherly dissolution of marriage are presented in In re Marriage

of Matherly, No. 18-0625, 2019 WL 3334355, at *2–4 (Iowa Ct. App. July 24, 2019)

[dissolution]. The facts of the trust issues raised by MaryBeth, which arose through

the course of the dissolution proceedings, are described in Slezak v. Matherly, No.

20-0352, 2021 WL 1016595, at *1 (Iowa Ct. App. Mar. 17, 2021), further review

application docketed (Apr. 5, 2021). The district court summarized the facts giving

rise to this appeal as follows:

On November 9, 2018, the parties in the instant matter reached an
agreement (the Agreement) regarding the maximum amount that
could be allocated and accessible for the payment of [Carl]’s attorney
fees. Under the Agreement, [Carl’s counsel] could allocate an
amount less than $100,000.00 from the proceeds arising from the
sale of the Fremont County farm for payment of [Carl]’s attorney fees.
Thirteen months later on December 5, 2019, [Carl’s counsel]
filed Notice of an Attorney Lien (the Lien) in [the Dissolution Action],
in which [Carl] was the Respondent. Under the Lien [Carl’s counsel]

1 Carl also appealed the assessment of sanctions and then moved to the issue
considered as a petition for writ of certiorari. The supreme court granted the
request to have it considered as a petition for writ of certiorari and then denied the
writ. Procedendo has issued on the sanctions issues.
2 Carl also argued MaryBeth lacked standing to attack the lien but conceded the

issue was raised for the first time on appeal and was not preserved for our review.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
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sought funds to be paid to his law firm in the aggregate amount of
$171,125.70. This included: (1) $50,000.00 for a retainer for [Carl]’s
appeal in the instant . . . action; (2) $94,792.59 for services rendered
and expenses advanced for the instant . . . action; and
(3) $26,333.09 for fees and expenses incurred in the Dissolution
Action.
In the Dissolution Action, [MaryBeth] resisted the alleged Lien
as a violation of the Agreement and Iowa law. On December 5, 2019,
[MaryBeth] also filed a Motion to Enforce Compliance with
Settlement Agreement and Court Order in the instant case. A
hearing on this issue was held on December 9, 2019. The court
entered an Order granting the relief [MaryBeth] requested in part and
requesting an itemized fee affidavit from [MaryBeth]’s counsel.

The district court found all but $26,333.09 of the lien filed by Carl’s counsel

was not supported by law and recognized that counsel conceded the error of the

original lien and filed a correction. The district court found the amount of the

original lien request violated the parties’ agreement, which said that Carl’s counsel

could recover fees less than $100,000.00. Carl’s counsel received $26,512.79

from the sale of the Fremont County farm, and the district court reduced the

amount that could be recovered by that value. Carl appeals.

II. Standard of Review

Carl argues the standard of review for the enforcement of the agreement

should be de novo because the district court heard the claims in equity. See In re

Est. of Rogers, 473 N.W.2d 36, 39 (Iowa 1991). MaryBeth argues the issue should

be reviewed for correction of errors at law because the agreement functioned as a

contract. See State v. Graham, No. 07-0306, 2008 WL 141683, at *1 (Iowa Ct.

App. Jan. 16, 2008). We addressed a similar issue the last time these parties were

before this court and apply the same analytical framework. See Slezak, 2021 WL

1016595, at *3.
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In determining whether a case is one in equity or at law, we look at
the pleadings, relief sought, and essential nature of the action. The
initial classification of claims in equity or law does not outweigh the
nature of the claims. The legal or equitable nature of the proceedings
is to be determined by the pleadings, the relief sought, and the nature
of the case.

Id. (altered for readability). Our supreme court recently applied this same

framework in Dix v. Casey’s Gen. Stores, Inc., 961 N.W.2d 671, 680–81 (Iowa

2021) (concluding the applicable standard of review was de novo because “the

case was tried in equity based on the unavailability of a jury, the relief requested

and ordered, and the inconsequential nature of any evidentiary rulings”).

Our review in Slezak focused on whether Carl was entitled to a jury trial.

2021 WL 1016595, at *3. We found the claims “related to breach of trust, which

were statutorily required to be tried to the bench sitting in equity,” and that no right

to a jury trial existed. Id. In this case, we are reviewing a claim for enforcement of

a settlement agreement between the parties on the method for payment of attorney

fees. “Settlement agreements are essentially contracts.” Graham, 2008 WL

141683, at *1. By Carl’s own words, “This controversy involves the construction

of an agreement that was read into the record in November 2018. The matter

should be resolved adequately only through construction; only a legal question is

presented.” “Construction is always reviewed as a law issue.” Fashion Fabrics of

Iowa, Inc., v. Retail Invs. Corp., 266 N.W.2d 22, 25 (Iowa 1978). Thus, we review

the fee agreement for correction of errors at law. Iowa R. App. P. 6.907. “The

findings made by the trial court are binding if supported by substantial evidence.”

Wende v. Orv Rocker Ford Lincoln Mercury, Inc., 530 N.W.2d 92, 95 (Iowa Ct.

App. 1995).
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We review an assessment of costs for abuse of discretion. Robbennolt v.

Snap-On Tools Corp., 555 N.W.2d 229, 238 (Iowa 1996). We will reverse only if

the district court exercises its discretion “on grounds that are unreasonable or

untenable.” In re Tr. No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013).

III. Discussion

A. Fee Agreement

Carl argues the district court erred in allegedly reducing the fee because the

record does not support the finding that the $26,512.79 payment was related to

the sale of farmland and MaryBeth should have addressed the lien directly. The

fee agreement read into the record provided:

[Carl] will agree to have the proceeds of the Fremont County farm—
any proceeds he gets from that upon the conclusion of his divorce
case . . . put into an FDIC-insured account to which he has no assets
not in Carl Matherly’s name until this case is concluded so that he is
unable to access those funds, and so that [MaryBeth]’s concerns
about dissipation, waste, improper investments, and directing those
assets elsewhere are alleviated.
[Carl’s counsel] requested that an amount below a hundred
thousand dollars be allocated and accessible for the payment of
attorneys’ fees to his office. I have discussed that with [MaryBeth],
and she is agreeable to that.

“Courts must strive to give effect to all the language of a contract.” Fashion

Fabrics of Iowa, Inc., 266 N.W.2d at 26. “[I]t is assumed in the first instance that

no part of [an agreement] is superfluous; an interpretation which gives a

reasonable, lawful, and effective meaning to all terms is preferred to an

interpretation which leaves a part unreasonable, unlawful, or of no effect.” Id.

Carl’s counsel, Shaun Thompson, filed a notice of the lien on December 5,

2019. That notice was amended on December 11 to reflect the lien for “$26,512.79

is for services rendered and expenses forwarded in the [dissolution and trust]
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actions.” Altogether, notices for attorney liens were filed for that amount in case

numbers associated with the dissolution of marriage, an equity case number, and

a trust case number. On February 20, 2020, MaryBeth filed an application for

attorney fees and direction of payment and moved to enforce compliance with the

settlement agreement. The record shows Thompson’s lien of $26,512.79 was paid

out of the proceeds from the sale of the Fremont County farm in order to transfer

marketable title of the farm to the buyer. Thompson then released the lien on

January 8, 2020. On our review, there was no specification as to which case the

fees would be directed in the agreement that was read into the record. The lien

was placed on funds that would have been paid to Carl from the sale of the farm,

which by the terms of the agreement should have been placed into an FDIC-

insured account for payment of attorney fees in general. However, because of the

lien, the funds were paid directly to Thompson, Carl’s counsel. Carl’s argument

that nothing in the record supported the finding that the lien payment was tied to

the sale of the farm is not supported by the evidence. The lien filing encumbered

the farm and was thus required to be paid from proceeds from the sale of the farm

because it had not been otherwise satisfied or released.

Carl also argues the district court erred in reducing the fee because

MaryBeth’s procedure for attacking the lien was improper. Carl asserts that

MaryBeth should have attacked the lien directly. There are two procedural issues

with Carl’s argument. Iowa Rule of Appellate Procedure 6.903(2)(g)(3) requires

the argument section of an appellant brief to support contentions “with citations to

the authorities relied on and references to the pertinent parts of the record in

accordance with rule 6.904(4). Failure to cite authority of an issue may be deemed
7

waiver of that issue.” Carl failed to provide authority for his argument that

MaryBeth was required to attack the lien directly, and we deem it waived. Iowa R.

App. P. 6.903(2)(g)(3). Even if we were to bypass the waiver, on our review of the

record, it does not appear that Carl ever raised this argument before the district

court. “It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier, 641 N.W.2d at 537. Error was not preserved. Id.

B. Cost Assessment

Carl does not argue that any abuse of discretion took place in assessing the

costs. Carl only argues the district court erred in assessing costs of the

enforcement because he should have prevailed on his motion to enforce the same

fee agreement.

Because we have already determined the fee agreement was properly

enforced, we need not address the argument any further.

IV. Conclusion

We affirm the district court’s enforcement of the agreement and cost

assessment.

AFFIRMED.