successor judge hearing ease pursuant to Iowa Rule of Civil Procedure 367(b
How later courts described this case
- successor judge hearing ease pursuant to Iowa Rule of Civil Procedure 367(b
- “When credibility is involved, a fair hearing requires the trier of fact to observe the testimony.”
Written by the judges who cited it.
The opinion
PEPPLE, J.,
dissenting in part; concurring in judgment.
I disagree with only one aspect of the foregoing opinion.
Concerning the fourth assignment of error, I would hold that since a trial court has the authority to award monetary damages and attorney fees as one means to coerce the contemnor into complying with the decree pending litigation, the trial court,
in addition
to the statutory authority of R.C. 2727.12, has the inherent authority to order the collection or security for payment of such a restitutionary award.
Absent such authority, the majority's conclusions that "[cloercion can be accomplished by a restitutionary award" which is "reasonably tailored to accomplish compliance with the decree" would become an empty threat. The trial court must be given wide discretion in exercising its authority to enforce such a remedial award, including requiring payment or security for payment, or other collection methods.
If the purpose of the remedial award at the time of preliminary injunction is coercion, where is the coercive pressure if the trial court has no authority to immediately enforce the award or provide for its eventual enforcement through requiring security for payment? I believe the trial court acted within its inherent authority, beyond the statutory authority, in requiring the bond.
Accordingly, I would have overruled the fourth assignment of error.
I concur in the judgment and in the remaining portions of the opinion.