Petition for Writ of Certiorari — Mark Irland, Petitioner v. Marengo Memorial Hospital, dba Compass Memorial Healthcare, et al.

APPENDIX TABLE OF CONTENTS

Appendix A: Supreme Court of Iowa, Order,

August 23, 2024 sais G5:0% 8835 mace acoso a vecom emis la

Appendix B: Court of Appeals of Iowa, Order,

July 11, 2024... eee. 3a

Appendix C: Court of Appeals of Iowa, Opinion,

July 3, 2024.0... cee eee Ba

Appendix D: Supreme Court of Iowa, Order,

February 23)" 2024? cc. mame Gare Goo G80.6 Bon 17a

Appendix E: Iowa District Court In and For

Iowa County, Ruling, September 12, 2023..... 22a

Appendix F: Supreme Court of Iowa, Order,

August 10, 2023 ..... 0.0000. 3la

Appendix G: Supreme Court of Iowa, Order,

July 26, 2023 2... eee eee 34a

Appendix H: Iowa District Court In and For

Iowa County, Ruling, June 18, 2023 ......... 37a

Appendix I: Iowa District Court In and For

Iowa County, Ruling, April 19, 2023 ......... 66a

Appendix J: Supreme Court of Iowa, Order,

January 25, 2023 22... 0c eee 75a

Appendix K: Jowa District Court for Iowa

County, Order, December 21, 2021 .......... 77a

APPENDIX A

IN THE SUPREME COURT OF IOWA

No. 23—1659

Iowa County No. LACV024796

ORDER

MARK IRLAND,

Plaintiff-Appellant,

vs.

MARENGO MEMORIAL HOSPITAL,

d/b/a COMPASS MEMORIAL

HEALTHCARE, MARENGO MEMORIAL

HOSPITAL BOARD OF TRUSTEES d/b/a

COMPASS MEMORIAL HEALTHCARE

BOARD OF TRUSTEES, BARRY G.

GOETTSCH, and NATASHA HAUSCHILT,

Defendants-Appellees.

After consideration by this court, en banc,

further review of the above-captioned case is denied.

Copies to:

Logan Jay Eliasen

Nyemaster Goode P.C.

700 Walnut Suite 1600

Des Moines, IA 50309

la

Mary Funk

Nyemaster Law Firm

700 Walnut Street Suite 1600

Des Moines, IA 50309

Katherine D. Hamilton

Nyemaster Goode P.C.

700 Walnut Street Suite 1600

Des Moines, IA 50309

Mark Irland

423 11th Avenue

Grinnell, IA 50112-2610

State of Iowa Courts

Case Number Case Title

23-1659 Irland v. Marengo Memorial

Hospital

So Ordered

/s/

Susan Larson Christens, Chief Justice

Electronically signed on 2024-08-23 10:17:13

2a

APPENDIX B

IN THE COURT OF APPEALS OF IOWA

No. 23-1659

ORDER

MARK IRLAND,

Plaintiff-Appellant,

Vs.

MARENGO MEMORIAL HOSPITAL, d/b/a

COMPASS MEMORIAL HEALTHCARE,

MARENGO MEMORIAL HOSPITAL BOARD OF

TRUSTEES d/b/a COMPASS MEMORIAL

HEALTHCARE BOARD OF TRUSTEES, BARRY G.

GOETTSCH, and NATASHA HAUSCHILT,

Defendants-Appellees.

This matter comes before the court, Tabor,

Greer, and Schumacher, JJ., upon the appellant's

petition for rehearing. Upon consideration, the petition

is denied.

Copies to:

Logan Jay Eliasen

Nyemaster Goode P.C.

700 Walnut Suite 1600

Des Moines, IA 50309

3a

Mary Funk

Nyemaster Law Firm

700 Walnut Street Suite 1600

Des Moines, IA 50309

Katherine D Hamilton

Nyemaster Goode P.C.

700 Walnut Street Suite 1600

Des Moines, [A 50309

Mark Irland

423 11th Avenue

Grinnell, [A 50112-2610

State of Iowa Courts

Case Number Case Title

23-1659 Irland v. Marengo Memorial

Hospital

So Ordered

/s/

Sharon Soorholtz Greer

Judge

Electronically signed on 2024-07-11 10:44:40

4a

APPENDIX C

IN THE COURT OF APPEALS OF IOWA

No. 23-1659

Filed July 3, 2024

MARK IRLAND,

Plaintiff-Appellant,

VS.

MARENGO MEMORIAL HOSPITAL, d/b/a

COMPASS MEMORIAL HEALTHCARE,

MARENGO MEMORIAL HOSPITAL BOARD OF

TRUSTEES d/b/a COMPASS MEMORIAL

HEALTHCARE BOARD OF TRUSTEES, BARRY G.

GOETTSCH, and NATASHA HAUSCHILT,

Defendants-Appellees.

Appeal from the Iowa District Court for Iowa

County, Fae Hoover Grinde, Judge.

A plaintiff appeals the granting of summary

judgment and the award of damages to defendants.

AFFIRMED IN PART AND REVERSED IN PART.

Mark Irland, Grinnell, self-represented

appellant. Mary Funk, Logan J. Eliasen, and

Katherine D. Hamilton of Nyemaster Goode PC, Des

Moines, for appellee.

Considered by Tabor, P.J., and Greer and Schumacher,

5a

JJ.

GREER, Judge.

After an adverse employment action resulting in

termination of employment for Dr. Mark Irland,

followed by the initiation of litigation over the decision,

these parties entered into a binding settlement

agreement. Although represented by counsel when he

signed the settlement agreement, Dr. Irland has not

come to terms with the legal boundaries of the

agreement. Because Dr. Irland continued to push those

boundaries by filing litigation over claims resolved, the

district court dismissed his 2022 petition and

ultimately awarded attorney fees to Marengo

Memorial Hospital, its board of trustees, its chief

executive officer Barry Goettsch, and its director of

compliance and risk manager Natasha Hauschilt

(collectively, the defendants).' On this appellate

review, Dr. Irland challenges the district court's grant

of summary judgment in favor of and award of

damages to the defendants. While we conclude the

grant of summary judgment was appropriate, we

reverse the district court's award of fees.

The present action relates to a settlement

agreement entered into between Dr. Irland and the

1 Intertwined with the employment issue are other challenges

asserted by Dr. Irland against the Jowa Board of Medicine related

to his licensing. See Irland v. Iowa Bd. of Med. (Iriand DI, 939

N.W.2d 85 (lowa 2020); Irland v. Iowa Bd. of Med. (Irland ID), No.

21-0331, 2022 WL 610449 (lowa Ct. App. Mar. 2, 2022).

6a

defendants” in July 2020. Under the terms of the

settlement agreement, Dr. Irland "agree[d],

promise[d], and covenant[ed] that neither he, nor any

person, organization or any other entity acting on his

behalf [would] file, charge, claim, sue or cause or

permit to be filed, charged or claimed, any action for

damages or other relief (including injunctive,

declaratory, monetary relief or other)" against the

defendants. He also agreed not to do so for "any matter

occurring in the past up to the date of [the settlement

agreement] or involving any continuing effects of

actions or practices which arose prior to the date of

[the settlement agreement].". Further, he also

confirmed that the settlement agreement applied to

"all claims which have arisen and of which [he] knows

or does not know, should have known, had reason to

know or suspects to exist" and "contemplates the

extinguishment of any such claim or claims." The

defendants were then released from liability for "any

continuing effects of actions or practices which arose

prior to the date of [the] settlement agreement." It took

legal action to enforce the mediated terms of the

agreement. And after the district court found "[t]here

was a clear meeting of the minds in this case

2 The case that was settled comprised of claims of breach of a

written contract for employment, breach of the duty of good faith

and fair dealing, age discrimination in violation of the Iowa Civil

Rights Act, termination in violation of public policy, defamation

per se, and tortious interference with a prospective business

advantage. Along with the defendants named above, Dr. Irland

also settled with the Marengo Memorial Hospital Foundation, the

Compass Memorial Healthcare Board of Directors, Iowa County,

the Iowa County Board of Supen/isors, Dr. Greg Neyman, and Dr.

Ben Miller.

7a

demonstrated by the confirmation emails immediately

following mediation and counsel for [Dr. Irland's]

email sent to the Court on July 30, 2020 cancelling

upcoming hearings and informing the Court that the

case had settled," Dr. Irland signed the written

settlement agreement in February 2021.

Prior to entering into the settlement agreement,

in August 2016, the defendants submitted a report to

the National Practitioner Data Bank (NPDB)®

documenting their concerns about Dr. Irland‘s ability

to practice medicine safely. The report noted

inadequate medical record keeping/poor

documentation and disruptive conduct as the basis for

their concerns. In June 2021, Dr. Irland submitted a

request to the NPDB to allow him to review the 2016

report; he also disputed the report's contents. The

NPDB then asked that the defendants provide

additional information including a timeline of events

and investigation report. The defendants did so in

June and August of that year, providing documents

from its 2016 investigation.

In spite of the settlement agreement that

prohibited further litigation, in November 2021, Dr.

Irland brought five claims against the defendants in

small claims court, seemingly based on _ this

correspondence with the NPDB: (1) loss of opportunity

3 The NPDB “is a web-based repository of reports containing

information on medical malpractice payments and certain adverse

actions related to health care practitioners, providers, and

suppliers." About Us, National Practitioner Data Bank,

https://www.npdb.hrsa.gov/top Navigation/aboutUs.jsp.

8a

and wages, (2) failure to perform, (8) acting in bad

faith, (4) fraudulent misrepresentation, and (5)

defamation with malice. Dr. Irland claimed that the

2016 report provided to the NPDB by the defendants

violated the settlement agreement and the defendants

should have retracted their 2016 report after the

January 2021 enforcement of the settlement

agreement. The small claims court granted the

defendants’ motion to dismiss for failure to state a

claim upon which relief may be granted in December,

concluding that

[ijn light of the previous settlement

agreement between the parties which

was judicially enforced, and _ the

subsequent Order dismissing the matter

with prejudice . . . the contents of [Dr.

Irland's] Petition are not stated with

sufficient specificity to give the Court the

ability to determine whether these claims

are new claims that exist independent

and subsequent to the claims that have

been adjudicated in the prior district

court matter, or whether [Dr. Irland] is

re-hashing stale claims that have been

fully litigated, or could have been

litigated previously.

The litigation did not end there. In August 2022,

Dr. Irland brought nine claims against the defendants,

again based on the 2016 NPDB report and,

additionally, property damage that occurred in 2018:

(1) breach of release of claims—written contract, (2)

fraudulent misrepresentation, (3) fraudulent

9a

inducement, (4) trespass with property damage,‘ (5)

defamation with actual malice, (6) breach of the duty

of good faith and fair dealing—written contract, (7)

negligence, (8) void non-disparagement contract

clause, and (9) tortious interference. In response, the

defendants raised two counterclaims: (1) breach of

contract and (2) a request for declaratory judgment. In

September, the defendants moved to dismiss Dr.

Irland's claims or, in the alternative, for summary

judgment. The court denied the motion in November,

finding the record was not yet developed for a

summary determination. In doing so, it determined

that, "[w]hen the Petition, on its face, is construed in

the light most favorable to [Dr. Irland], the Court

concludes it cannot be said with certainty that there is

no set of facts under which [he] may be entitled to

recover against [the d]Jefendants." The defendants

again moved for summary judgment in March 2023,

supporting the motion with several documents

including the 2016 NPDB report, court filings from the

2021 action, and the settlement agreement and motion

to enforce the settlement agreement.

The court granted the defendants' summary

judgment motion in June, finding "[e]ven when the

facts are viewed in the light most favorable to [Dr.

Irland], the Court concludes that [his] claims are

barred by the terms of the release and settlement

agreement." Regarding the NPDB report, the court

determined that Dr. Irland "was aware of this

4 This claim related, it appears, to a vehicle crashing into a

mailbox on Dr. Irland's property in July 2018.

10a

information before the parties entered into their

agreement, and thus he had the ability to fully

contemplate the content of these letters before

entering into the agreement" and "[bJased on the clear

and unambiguous terms of the parties' settlement

agreement [Dr. Irland's] claims against [the

defendants] are barred." Regarding the defendants'

counterclaims, the court found that Dr. Irland "now

has unsuccessfully sued and stated claims against [the

djefendants in this action, including disclosing

confidential terms of the settlement agreement. This

is a clear breach of the parties’ settlement agreement,

and [the dJefendants are entitled to damages on their

breach of contract claim." Lastly, the court issued a

declaratory judgment "that the parties' settlement

agreement does not require [the d]efendants to retract

or take any affirmative action with respect to the

NPDB report; [Dr. Irland] has breached the parties'

settlement agreement; and [the dJefendants have been

damaged by [Dr. Irland's] breach and are entitled to be

made whole."

In July, the defendants submitted an affidavit

documenting attorney fees for work completed on the

case through that month and attached hourly billing

statements to the affidavit. The court ruled in

September that the "[dJefendants are entitled to

recover attorney fees in this action." Furthermore, it

found the amount of attorney fees accrued reasonable

given that Dr. Irland had "made numerous filings and

claims repeatedly, and [the d]efendants had to address

each of those filings and claims. The Court conclude[d]

the expenditure of fees in this case was reasonable

given the subject matter involved and the matters [the

lla

djefendants had to address." Lastly, it stated that it

"has reviewed [the djefendants' billing statements and

does not find the time therein to be unnecessary or

duplicative, and [the d]jefendants' counsel and staff

have billing rates that are in line with local custom."

It awarded damages in the amount of $65,623.50,

which consisted entirely of attorney fees.

Dr. Irland appeals. He challenges the court's

grant of summary judgment and requirement that he

pay the defendants' attorney fees.

I. Summary Judgment.

Dr. Irland purports to raise several challenges

to the district court's grant of summary judgment in

favor of the defendants. "We review a district court's

summary judgment ruling for correction of errors at

law." Breese v. City of Burlington, 945 N.W.2d 12, 17

(lowa 2020). Summary judgment is proper when the

moving party establishes there is no genuine issue of

material fact and they are entitled to judgment as a

matter of law. Deeds v. City of Marion, 914 N.W.2d

330, 339 Cowa 2018). "We [re]view the record in the

light most favorable to the nonmoving party." Id. But

our review is "limited to whether a genuine issue of

material fact exists and whether the district count

correctly applied the law." Pillsbury Co., Inc. v. Wells

Dairy, Inc., 752 N.W.2d 480, 434 (lowa 2008).

Here, we find that Dr. Irland forfeited his

challenges in the appeal. Outside of Dr. Irland's

challenge to the judgment for attorney fees entered

against him, he lists several "statement of arguments"

12a

in his appellate brief originating from the summary

judgment ruling. But as to each point, Dr. Irland goes

no further than listing the topic of his specific dispute

followed by some case citations and some general

statements regarding the standard of review and

preservation of error. Missing from the brief is any

development of the issue, how the case law relates to

the issue, or even what relief is requested. Dr. Irland

both failed to clearly identify issues on appeal other

than setting out headings. And, more importantly, he

failed to make more than a perfunctory argument in

support of any issue, making our review next to

impossible. See State v. Jackson, 4 N.W.3d 298, 311

(Iowa 2024), as amended (May 21, 2024). One way to

forfeit an issue on appeal is when the party fails to

make more than a perfunctory argument in support of

the issue. See State v. Tyler, 867 N.W.2d 136, 166n.14

(Iowa 2015). Likewise, a party forfeits an issue on

appeal when the party fails to cite any authority in

support of the issue. See Iowa R. App. P.

6.903(2)(a)(8)(8); Richardson v. Neppl, 182 N.W.2d

384, 390 (lowa 1970) ("A proposition neither assigned

nor argued presents no question and need not be

considered by us on review."). Dr. Irland did not detail

how the cases he cited related to any argument he

intended to present to us on appeal. We will not

develop and make arguments for parties on appeal.

See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d

239, 240 (Iowa 1974) ("To reach the merits of this case

would require us to assume a partisan role and

undertake the appellant's research and advocacy. This

role is one we refuse to assume."). Thus, we affirm the

district court's summary judgment ruling as to the

dismissal of Dr. Irland's claims against these

18a

defendants.

II. Damages/Attorney Fees.

Two of Dr. Irland‘s challenges relate to the

judgment of attorney fees to the defendants, and we

will address that issue. The district court found that

Dr. Irland breached the terms of the settlement

agreement by not keeping its terms confidential and by

bringing subsequent lawsuits over the released claims.

It determined the defendants were entitled to damages

and asked for a "statement of fees." Ultimately it

awarded defendants their attorney fees in the amount

of $65,623.50, plus interest and the costs of the action.

While the district court characterized this award as

one for damages for breach of contract, consisting

solely of attorney fees, our long-standing rule is that

"Igjenerally, a party has no claim for attorney fees as

damages in the absence of a statutory or written

contractual provision allowing such an award."

Williams v. Van Sickel, 659 N.W.2d 572, 579 (lowa

2003). If there is no statutory authority or a written

contract provision allowing for attorney fees, these

defendants must "find support for such an award

under the common law." Jd. Our review is de novo

because the question of whether to grant common law

attorney fees rests in the court's equitable powers. UE

Local 893/IUP v. State, 997 N.W.2d 1, 15 (Iowa 2023).

"Iowa follows the American rule: 'the losing

litigant does not normally pay the victor's attorney's

fees." Thornton v. Am. Interstate Ins. Co., 897 N.W.2d

445, 474 (Iowa 2017) (citation omitted). Here, we find

no statute that allows recovery of attorney fees under

14a

these circumstances, and the settlement agreement

did not provide for an award of attorney fees should a

party breach its terms. So, instead of treating the

claim for attorney fees as a claim for damages, the

district court should have considered if the defendants

had support for this award under the common law or

if the claim fits under certain exceptions developed in

the case law—such as conduct rising to the level of

culpability that would necessitate such an award. See

Hockenberg Equip. Co. v. Hockenberg’s Equip. &

Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158

(Iowa 1998) (disallowing attorney fees in a breach of

settlement agreement where it could not be shown

that defendants "engage[d] in oppressive or conniving

behavior" with action that was "harsh, cruel or

tyrannical"). To this point, courts have recognized a

rare exception to the general rule when the behavior of

the losing party is "extraordinarily culpable" rising to

the level of "oppression or connivance to harass or

injure another." UE Local 898/IUP, 997 N.W.2d at 15

(citation omitted).

So, on our de novo review, we consider Dr.

Irland's behavior and recognize his repeated bringing

of challenges that are not successful might constitute

bad faith and support a sanction award. Here, the

attorney fee award was not characterized as a sanction

and, when applying the standard to support an

common law attorney fee award of damages, the record

does not show conduct that is "intentional and likely to

be aggravated by cruel and tyrannical motives."

Williams, 659 N.W.2d at 579 (quoting Hockenberg, 510

N.W.2d at 159). Thus, we reverse the judgment of the

district court awarding the defendants attorney fee

15a

damages.

AFFIRMED IN PART AND REVERSED IN

PART.

State of Iowa Courts

Case Number Case Title

23-1659 Irland v. Marengo Memorial

Hospital

Electronically signed on 2024-07-03 08:44:06

16a

APPENDIX D

IN THE SUPREME COURT OF IOWA

NO. 23—1659

Iowa County No. LACV024796

ORDER

MARK IRLAND,

Plaintiff-Appellant,

VS.

MARENGO MEMORIAL HOSPITAL, d/b/a

COMPASS MEMORIAL HEALTHCARE,

MARENGO MEMORIAL HOSPITAL BOARD OF

TRUSTEES d/b/a COMPASS MEMORIAL

HEALTHCARE BOARD OF TRUSTEES, BARRY G.

GOETTSCH, and NATASHA HAUSCHILT,

Defendants-Appellees.

This matter comes before the court upon

appellant's motion to amend his proof brief and the

appendix, to which appellees filed resistances and

appellant filed replies, and appellees' motion for an

extension of time to file a final brief, to which

appellant filed a resistance. Also before the court on its

own motion are appellant's appendix volumes and

appellant's final brief and appellant's final reply brief.

The court finds appellant's motion for leave to

file an amended proof brief should be denied.

17a

Appellant filed a proof briefon December 18, 2023, and

appellees' filed a proof brief on January 17, 2024.

Appellees argue, and the court finds, the amended

proof brief Would add significant length to the brief as

well new arguments, and granting the motion would

require the court to allow appellees to file an amended

proof brief. And to the extent appellant argues he

should have the opportunity to amend his proof brief

to add the arguments he e-mailed to counsel for the

appellees on or about January 10, 2024, the motion

must be denied because such arguments should have

been included in his proof brief, and briefs—except in

cases deemed confidential by rule or statute—cannot

be confidential. Jowa R. App. P. 6.110(5).

The court finds appellant's motion to file an

amended appendix should be denied. As of January 30,

2024, the date of the court's last order in this appeal,

appellant was required to file an appendix pursuant to

the rules of appellate procedure, meaning no motion to

file an amended appendix was required. The court

notes, however, appellant's motion should also be

denied to the extent appellant seeks to add, replace,

omit, or otherwise change the documents the parties

listed in their designations of parts, which have not

been stricken or amended. See Iowa R. App. P.

6.905(1)(b), (c) (requiring appellant to include

documents designated by the parties in the appendix).

The court notes appellant's appendix volumes do

not comply with rule of appellate procedure 6.905.

Appellant has not filed appendix volumes that include

(and only include) the documents identified by the

parties in their designations of parts of the appendix

18a

filed on December 18, 2023, and January 17, 2024,

respectively. Iowa R. App. P. 6.905(1)(b), (c). In

addition, it appears the confidential appendix includes

documents that are not confidential, Iowa R. App. P.

6.905(14), for example, the appellees' answer filed on

December 5, 2022, which was filed as a public

document with the clerk of the district court. And

while an appellant may file a separate appendix

containing exhibits, documents placed in such an

appendix should be documents treated as exhibits by

the parties and the district court, Iowa R. App. P.

6.905(8), and should be identified by their exhibit

numbers along with brief descriptions in the table of

contents, Iowa R. App. P. 6.905(4)(c). Finally, appendix

volumes should be properly paginated pursuant to rule

6.905(3)(c); the first volume of a non-confidential

appendix should include a list of the relevant docket

entries on a separate page immediately following the

table of contents, Iowa Rs. App. P. 6.905(2)(b)(2),

6.905(5); and each volume of a non-confidential

appendix should include the table of contents for each

non-confidential volume, Iowa R. App. P. 6.905(4). This

list of violations should not be considered all-inclusive.

Finally, appellees' motion for an extension of

time to file a final brief should be granted because the

appendix volumes should be stricken.

Upon consideration, the appellant's motion for

leave to file an amended proof brief is denied.

Appellant's first amended proof brief filed on February

6, 2024, and appellant's final briefs filed on February

18 and 19, 2024 are stricken. Appellant's motion to

amend the appendix is denied. The three appendix

19a

volumes filed on February 6, 2024 are stricken.

Consequently, the appellant's final reply briefs filed on

February 18 and 19, 2024, are stricken. The appellees'

motion for an extension of time to file a final brief is

granted.

The clerk shall maintain the amended

confidential appendix filed on February 6, 2024 at

security level 1. Within 14 days of the date of this

order, appellant shall file an amended appendix or

appendix volumes that comply in all respects With rule

of appellate procedure 6.905. Within 14 days after

appellant serves the amended appendix or appendix

volumes, the parties shall file their final briefs and

final reply brief.

Copies to:

Mark Irland

423 11th Ave.

Grinnell, [A 50112-2610

Mary E. Funk

Katherine D. Hamilton

Logan J. Eliasen

Nyemaster Law Firm

700 Walnut St., Suite 1600

Des Moines, IA 50309

State of Iowa Courts

Case Number Case Title

23-1659 Irland v. Marengo Memorial

Hospital

20a

So Ordered

/s/

David May, Justice

Electronically signed on 2023-02-23 17:21:26

21a

APPENDIX E

IN THE IOWA DISTRICT COURT

IN AND FOR IOWA COUNTY

Mark Irland, M.D.,

Plaintiff/Counterclaim Defendant,

vs. No. LACV024796

Marengo Memorial Hospital d/b/a Compass

Memorial Healthcare, et al.,

Defendants/Counterclaim Plaintiffs.

RULING

On this date, the above-captioned matter came

before the undersigned for review pursuant to the

terms of the Court's June 18, 2023 Ruling. Also

pending at this time is Plaintiff/Counterclaim

Defendant Mark Irland, M.D.'s (hereinafter Plaintiff)

August 25, 2023 Motion for Reconsideration, Enlarge,

or Amend and Motion to Unseal Documents for Motion

for Reconsideration, Enlarge, or Amend Appendix. The

Court finds a hearing on the pending matters is

unnecessary. Having considered the file, relevant case

law, and written arguments of the parties, the Court

hereby enters the following ruling.

The Court's June 18, 2023 Ruling granted

Defendants/Counterclaim Plaintiffs' (hereinafter

Defendants) Motion for Summary Judgment. The

Court incorporates the content of the Ruling as if set

22a

forth in full herein. The Court specifically directed

Defendants to submit a statement of fees that

constitute their damages. On July 18, 2023, Attorney

Mary Funk filed an Affidavit in Support of

Defendants'/Counter claimants' Motion for Award of

Attorneys' Fees and Interest. The Affidavit is

supported by Exhibits A and B, which consist of billing

information (some redacted) for Defendants' defense

against Plaintiffs claim, and for Defendants'

prosecution of their own claim. Attorney Funk has

sworn in her Affidavit that the total compensation

sought by Defendants is $64,091.05.

Plaintiff resists the award sought by

Defendants, arguing that attorney fees are not

recoverable; attorney fees may be awarded only to the

prevailing party; the fee application is premature; the

fees sought must be reasonable in relation to the

results obtained; the number of hours for which

Defendants seek compensation is unreasonable; and

Defendants rely on the wrong hourly rates.

Defendants have filed a Reply that is supported

by Exhibit C, which consists of billing information

(now unredacted) for Defendants' defense against

Plaintiffs claim, and for Defendants' prosecution of

their own claim. Defendants argue that their fees are

recoverable for Plaintiff's breach of the release and

covenant not to sue, and Defendants are the prevailing

parties in this action. Defendants further argue the

attorney fees sought are reasonable.

Defendants' Counterclaims in this action are for

breach of contract, and for a declaratory judgment

23a

finding that (1) the agreement does not require

Compass to take any affirmative action with respect to

the report it filed with the National Practitioner

Database (NPDB); (2) Plaintiff s actions in filing

additional lawsuits after the execution of the

agreement constitute a breach of contract; and (8)

Defendants have been damaged by Plaintiff's breach of

contract and are entitled to contractual and/or

consequential damages.

The lowa Supreme Court requires that damages

for a breach of contract claim "have some nexus with

the breach, 1.e., the damages recoverable for a breach

of contract are limited to losses actually suffered by

reason of the breach and must relate to the nature and

purpose of the contract." Royal Indem. Co. v. Factory

Mut. Ins. Co., 786 N.W.2d 839, 847 (lowa 2010).

"Contract principles apply to the interpretation of

releases." Widener v Arco Oil and Gas Co Div. of

Atlantic Richfield Co., 717 F.Supp. 1211, 1217 (N.D.

TeX. 1989) (citing Bartel Dental Books Co Inc v.

Schultz, 786 F.2d 486 (2nd Cir. 1986)). "The breach of

a release may be grounds for an action for damages."

Id. (citing Anchor Motor Freight. Inc. v. International

Brotherhood of Teamsters, 700 F.2d 1067, 1071-72 (6th

Cir. 1983)). "Because the purpose of entering into a

release is to avoid litigation, the damages a releasor

suffers when the release is breached are its costs and

attorneys' fees incurred in defending against the

wrongfully brought action." Id.

In this case, Defendants sought relief against

Plaintiff for his alleged breach of the release entered

into by the parties. The Court has found that

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Defendants are entitled to summary judgment on their

claims, and thus they are the prevailing parties in the

action. The damages at issue are the costs and

attorneys' fees Defendants incurred in defending

against Plaintiffs wrongfully brought action. The

damages sought by Defendants have a nexus to the

breach, in that they are the losses actually suffered by

Plaintiff's breach. Defendants are entitled to recover

attorney fees in this action.

The Court turns to the issue of whether the fees

sought by Defendants are reasonable. With respect to

reaching a determination regarding the

reasonableness of attorney fees, the Iowa Supreme

Court has held:

"A reasonable attorney fee is initially

calculated by multiplying the number of

hours reasonably expended on _ the

winning claims times a reasonable hourly

rate." Dutcher [v. Randall Foods, 546

N.W.2d 889, 896 (Iowa 2009)]. This

calculation, known as the _ lodestar

amount, "is presumed to be the

reasonable attorney fee envisioned by the

relevant statutes." Id. at 897. The

reasonableness of the hours expended

and the hourly rate depends, of course,

upon the facts of each case. Hensley v.

Eckerhart, 461 U.S. 424, 429-30, 103

S.Ct. 1988, 1937, 76 L.Ed.2d 40, 48

(1988). "The district court is considered

an expert in what constitutes a

reasonable attorney fee ...." GreatAmerica

25a

Leasing Corp. v. Cool Comfort Air

Conditioning & Refrigeration. Inc., 691

N.W.2d 730, 733 (lowa 2005).

Factors normally considered in determining

reasonable attorney fees include:

"[T]he time necessarily spent, the nature

and extent of the service, the amount

involved, the difficulty of handling and

importance of the issues, the

responsibility assumed and_ results

obtained, the standing and experience of

the attorney in the profession, and the

customary charges for similar service."

Schaffer v. Frank Moyer Constr., Inc.,

628 N.W.2d 11, 24 dowa 2001) (quoting

Landals, 454 N.W.2d at 897).

"Reductions may be made, however, for

such things as partial success,

duplicative hours or hours not reasonably

expended." Sherman, 314 F.Supp.2d at

881. "The district court must look at the

whole picture and, using independent

judgment with the benefit of hindsight,

decide on a total fee appropriate for

handling the complete case." Landals,

454 N.W.2d at 897.

There is no precise rule or formula for

making these determinations. However,

"Idjetailed findings of fact with regard to

the factors considered must accompany

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the attorney fee award." Dutcher, 546

N.W.2d at 897; see also U.S. ex rel.

Taxpayers Against Fraud v. Gen. Elec.

Co., 41 F.3d 1032, 1048-49 (6th Cir.1994)

(stating "district court should make

findings of fact for the appellate record

that will enable us to review the

reasonableness of the [attorney fee]

award").

Boyle v. Alum—Line, Inc., 773 N.W.2d 829, 832-33

(Iowa 2009).

In considering the factors necessary to reach a

determination regarding the reasonableness of the

attorney fee request in this case, the Court first

reviews the time spent by Defendants’ counsel on the

claims stated in the case, as well as the nature and

extent of services provided. The Court finds nothing

unreasonable about the time spent by Defendants'

counsel on this case. Defendants had to prove their

own claim, which arose from Plaintiff's own breach of

the release agreement. Plaintiff has made numerous

filings and claims repeatedly, and Defendants had to

address each of those filings and claims. The Court

concludes the expenditure of fees in this case was

reasonable given the subject matter involved and the

matters Defendants had to address.

The Court next addresses the amount of fees

involved. The Court does not find the fee amount to be

unreasonable. Again, it was Plaintiff's own breach of

the release agreement that led to the filing of the

Counterclaims, and Defendants had to respond to

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numerous and repeated filings and arguments made

by Plaintiff.

The Court turns to consideration of the difficulty

of handling and importance of the issues, as well as

the responsibility assumed and results obtained.

Defendants had to take seriously Plaintiff's filings and

claims, as well as gather information to prove their

own Counterclaims. The fee request is not

unreasonable given the difficulty of issues presented,

as well as Defendants’ success on their own claims.

Finally, the Court considers the standing and

experience of the attorney in the profession, as well as

the customary charges for similar service. Defendants'

counsel are regularly active litigators in Iowa, and

have familiarity with the types of claims stated in this

case. Defendants eliminated the need for a trial

through the filing of their dispositive motion. In this

particular case, Defendants' counsel had to expend

time addressing Plaintiff's numerous and repeated

filings, and Defendants still obtained a favorable

judgment. The Court has reviewed Defendants' billing

statements and does not find the time therein to be

unnecessary or duplicative, and Defendants' counsel

and staff have billing rates that are in line with local

custom. The Court finds nothing unreasonable about

Defendants utilizing legal associates and paralegals on

some issues, in addition to work being performed by

lead counsel for Defendants.

In sum, when the whole picture is viewed, and

applying the Court's independent judgment with the

benefit of hindsight, the fees sought by Defendants are

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reasonable.

Finally, the Court addresses Plaintiff's August

25, 2023 Motion for Reconsideration, Enlarge, or

Amend. This Motion seeks reconsideration,

enlargement, or amendment of the Court's June 18,

2023 Ruling. The Motion was filed far beyond the time

that a motion to reconsider may be filed pursuant to

Iowa Rule of Civil Procedure 1.904. The Court finds

the Motion should be denied as untimely. Because the

Court denies the Motion as untimely, the Court finds

the Motion to Unseal is moot.

RULING

IT IS THEREFORE ORDERED that the Court

awards damages to Defendants in the amount of

$65,623.50. Interest shall award at the statutory rate

of 7.30% from December 5, 2022. Court costs are

assessed to Plaintiff Mark Irland, M.D.

IT IS FURTHER ORDERED that Plaintiff's

August 25, 2023 Motion for Reconsideration, Enlarge,

or Amend is DENIED. The August 25, 2023 Motion to

Unseal is moot.

The matter now is deemed closed and finalized.

Clerk to notify.

State of Iowa Courts

Case Number Case Title

LACV024796 Mark Irland v. Marengo Memorial

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