Iowa Supreme Court Attorney Disciplinary Board Vs. James L. Wagner ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 09–0504
Filed June 26, 2009
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Complainant,
vs.
JAMES L. WAGNER,
Respondent.
On review of the report of the Grievance Commission.
Grievance Commission in disciplinary proceeding recommends
suspension of respondent’s license to practice law. LICENSE
SUSPENDED.
Charles L. Harrington and David J. Grace, Des Moines, for
complainant.
James L. Wagner, Waterloo, pro se.
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PER CURIAM.
This matter comes before the court on the report of a division of
the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct.
R. 35.10. The Iowa Supreme Court Attorney Disciplinary Board alleged
the respondent, James L. Wagner, violated ethical rules by neglecting
client matters, prematurely taking probate fees, misrepresenting the
status of an estate to the court, failing to deposit unearned fees in his
trust account, failing to promptly return unearned fees, and failing to
cooperate with the Board. A division of the Grievance Commission of the
Supreme Court of Iowa found Wagner violated the Iowa Code of
Professional Responsibility for Lawyers and the Iowa Rules of
Professional Conduct and recommended that we suspend Wagner’s
license to practice law for a period of ninety days. 1 Upon our respectful
consideration of the findings of fact, conclusions of law, and
recommendation of the Commission, we find the respondent committed
the alleged ethical violations and suspend his license to practice law
indefinitely with no possibility of reinstatement for six months.
I. Standard of Review.
We review attorney disciplinary proceedings de novo. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815
(Iowa 2007). The Board has the burden to prove attorney misconduct by
a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 792 (Iowa 2006).
This burden is less than proof beyond a reasonable doubt,
but more than the preponderance standard required in the
usual civil case. Once misconduct is proven, we “may
1The Iowa Rules of Professional Conduct became effective July 1, 2005,
replacing the Iowa Code of Professional Responsibility for Lawyers. Some of the
conduct in this case occurred before the effective date of the new rules and some after.
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impose a lesser or greater sanction than the discipline
recommended by the grievance commission.”
Id. (quoting Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Lett, 674
N.W.2d 139, 142 (Iowa 2004)). The Commission’s findings and
recommendations are given respectful consideration, but we are not
bound by them. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Isaacson, 750
N.W.2d 104, 106 (Iowa 2008).
II. Factual Findings.
The respondent has been an attorney for thirty-five years and is
currently practicing law in Waterloo, Iowa. The charges in this
disciplinary action stem from the respondent’s representation of four
separate clients. A hearing was held before a division of the Grievance
Commission on February 24, 2009. The factual findings and
conclusions reached in each case will be addressed separately.
A. Bornong Estate. In January 2004, Wagner was retained to
assist in the probate of the estate of Margaret Bornong. The executor of
the estate was the decedent’s sister, Helen McClain.
Shortly after opening the estate, Wagner obtained a fee
authorization order in the amount of $22,642. Although he had not
prepared or filed the appropriate tax returns, on March 3, 2004, Wagner
took $11,321 or one-half of the authorized fee. He took the second half
of his fees on October 1, 2005, before any final report was prepared or
filed or the court costs paid. The respondent did not place these moneys
in the client’s trust account.
Pursuant to Bornong’s will, the residuary of her estate was to be
placed in trust with the income to be distributed to her nephew, Michael
McClain, while he completed his Ph.D., but for no longer than two years
after Bornong’s death. Thereafter, the principal and accumulated income
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was to be distributed equally to her sister’s children. Two years after her
death, the decedent’s estate remained open. On October 31, 2005,
Wagner filed an interim report informing the court that the final report
and accounting was being prepared and that all assets had been
distributed. He requested that the court allow the estate to be held open
until February 28, 2006, “to allow one of the beneficiaries to finish school
to avoid the expense of opening and administering a Trust.”
The executor, Helen McClain, died on March 2, 2006. On May 4,
2006, Michael McClain wrote to the respondent requesting the
respondent’s assistance in locating his mother’s will and voicing
concerns that his aunt’s estate had not been settled and that the tax
obligations had not been addressed. Wagner failed to respond to this
inquiry. On May 31, 2006, the respondent had filed another interim
report and request to keep Bornong’s estate open. This request was
signed by the respondent without the named alternate executor’s
knowledge or consent.
The new executor obtained new legal representation. Upon
investigation, it was discovered the respondent had failed to file some of
the required federal and state estate tax returns. Moreover, the returns
that had been prepared and/or filed were incorrect, resulting in
significant penalties and interest. It was also determined Wagner had
failed to appropriately file the required fiduciary tax forms, resulting in
additional penalties and fees. Together, these errors resulted in penalties
and interest in excess of $55,000. In addition, counsel determined
Wagner had misrepresented to the court the status of beneficiary Michael
McClain, who had completed his education five months prior to the
respondent’s initial request to hold the estate open and, further, had
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misrepresented in the second interim report that he—Wagner—was
awaiting tax clearances. The tax returns, in fact, had not been filed.
As a result of the respondent’s dilatory handling, the estate was
not closed until June 2007, over three and one-half years after Bornong’s
death. Moreover, despite requests from the estate, Wagner failed to
refund any portion of his fees or recompense the estate for his errors.
On May 29, 2007, the executor of the estate filed a lawsuit against
Wagner, seeking damages due to Wagner’s negligence in administering
Bornong’s estate. On January 10, 2008, Wagner confessed judgment to
the executor in the sum of $66,058. On February 5, 2009, the
respondent paid the judgment plus interest and costs.
The Board asserted Wagner violated our ethical rules by (1) failing
to handle the estate with reasonable diligence and promptness; (2) failing
to adequately communicate with his client; (3) collecting probate fees
before they were earned, contrary to Iowa Rule of Probate Procedure
7.2(4); 2 (4) failing to deposit unearned fees into his trust account; (5)
misrepresenting the status of a matter to the court; and (6) failing to
promptly refund unearned fees. See Iowa Rs. Prof’l Conduct 32:1.1
(requiring lawyer to provide competent representation); 32:1.3 (requiring
lawyer to act with reasonable diligence and promptness in representing a
client); 32:1.4 (requiring lawyer to keep client reasonably informed and
promptly comply with requests for information); 32:1.5(a) (providing
lawyer shall not violate any restrictions imposed by law relating to a fee);
32:1.15 (requiring lawyer to place unearned fees in client trust account);
2In pertinent part, Iowa Rule of Probate Procedure 7.2(4) provides:
One half of the fees for ordinary services may be paid when the federal
estate tax return, if required, and Iowa inheritance tax return, if
required, are prepared. . . . The remainder of the fees may be paid when
the final report is filed and the costs have been paid.
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32:1.16(d) (requiring lawyer, upon termination, to promptly refund any
unearned fee); 32:3.3(a)(1) (prohibiting lawyer from knowingly making
false statement of material fact to the court); and 32:8.4(a), (c), and (d)
(holding it is misconduct for lawyer to violate an ethical rule, engage in
conduct involving misrepresentation, and engage in conduct that is
prejudicial to the administration of justice); Iowa Ct. Rs. 45.1 (requiring
attorney to deposit funds belonging to client in client trust account);
45.2(2) (requiring attorney to promptly deliver to the client funds that
client is entitled to receive).
In response, the respondent admitted the factual allegations
contained in this count of the Board’s complaint. He also admitted the
alleged violations. Upon our de novo review of the record, we, like the
Commission, conclude the facts support a finding by a convincing
preponderance of the evidence the respondent committed the ethical
violations alleged by the Board in his representation of the Bornong
estate.
B. Ronald Bearbower Asbestos Claim. Between 1963 and 1966,
Ronald Bearbower was a seaman in the Navy where he was exposed to
asbestos on a regular basis. In 1997, Bearbower was diagnosed with
lung cancer for which he underwent treatment. Although currently in
remission, he lives each day with the risk of his cancer returning.
In 2003, Bearbower learned of a Texas law firm that was
prosecuting asbestos cases resulting from exposure during military
service. Upon his request for information, Bearbower received a
questionnaire and an attorney employment agreement form from the
Texas firm. In May 2003, Bearbower brought the information to Wagner
for his review. A week later, Wagner agreed to represent Bearbower in
his asbestos claim, and the parties entered into a written contract.
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On July 11, 2003, the Texas law firm contacted Bearbower in
writing, inquiring whether he intended to proceed with his asbestos
claim. The letter indicated a need to act expediently because more
stringent filing criteria were expected after August 1. Bearbower
presented Wagner with this information. Wagner, however, advised him
not to worry because under Iowa law the statute of limitations would not
run for two years.
From August 2003 to August 2004, Bearbower called the
respondent’s office every other month to see how things were
progressing. The respondent never returned Bearbower’s calls. Between
January 2005 and December 2006, Bearbower called Wagner
approximately twice a week to inquire as to whether a lawsuit had been
filed. Wagner never returned any of these calls either. Finally, in
December 2006, Bearbower obtained a new attorney. An investigation
revealed that Wagner had failed to file any lawsuit on Bearbower’s behalf.
Moreover, subsequent inquires led to the conclusion the statute of
limitations had run on Bearbower’s asbestos claim.
The Board alleged the respondent’s actions in the Bearbower
asbestos claim evidenced neglect and a failure to communicate and led to
the loss of the client’s claim. As a result, the Board claimed the
respondent violated the Iowa Code of Professional Responsibility for
Lawyers DR 6–101(A), providing a lawyer shall not neglect a client’s legal
matter; DR 7–101(A), providing a lawyer shall not fail to carry out a
contract of employment legally entered into or prejudice or damage a
client during the course of the professional relationship; DR 1–102(A)(1),
(5), and (6), holding it is misconduct for a lawyer to violate an ethical
rule, engage in conduct involving misrepresentation, and engage in
conduct that is prejudicial to the administration of justice; and Iowa
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Rules of Professional Conduct 32:1.1, 32:1.3, 32:1.4, and 32:8.4(a) and
(d).
The respondent admitted the facts asserted in the Board’s
complaint. He also admitted the alleged violations. As in the prior claim,
we conclude the facts support a finding by a convincing preponderance
of the evidence the respondent committed the ethical violations alleged
by the Board in his representation of Ronald Bearbower.
C. Dorothy Bearbower Personal Injury Claim. Dorothy
Bearbower was injured in a motor vehicle accident on January 10, 2003.
She subsequently engaged the respondent to represent her in a claim
against the driver of the other vehicle, Sally Jarchow. On January 10,
2005, the respondent filed a claim on behalf of Dorothy and Ronald
Bearbower against the Jarchows.
In April 2005, the respondent was served with interrogatories and
a request for production in the matter. The Bearbowers were never
informed of these discovery requests or contacted by the respondent with
regards to them. When discovery was not forthcoming, the defendants’
attorney filed a motion to compel and a motion for sanctions. On
October 5, 2005, Wagner responded that discovery would be completed
by October 31, 2005. The deadline was subsequently extended until
January 16, 2006. The respondent failed, however, to ever respond to
the defendants’ discovery request. On March 7, 2006, the court granted
the defendants’ motion to dismiss due to Wagner’s failure to resist the
renewed motion for sanctions and his failure to respond to discovery. By
this time, the two-year statute of limitations had run on Dorothy
Bearbower’s claim, preventing the refiling of the action. The Bearbowers
subsequently filed a lawsuit against the respondent for negligent
representation in this matter and in the asbestos case.
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The Board alleged the respondent’s actions violated DR 6–101(A),
DR 7–101(A), and DR 1–102(A)(1), (5), and (6) of the Iowa Code of
Professional Responsibility for Lawyers and Iowa Rules of Professional
Conduct 32:1.1, 32:1.3, 32:1.4, 32:3.2 (requiring lawyer to make
reasonable efforts to expedite client’s litigation), and 32:8.4(a) and (d).
Again, the respondent admitted the facts alleged in the Board’s
complaint, which we conclude establishes by a convincing
preponderance of the evidence the ethical violations alleged by the Board.
D. Nelsen Real Estate Transaction. In early 2008, four siblings,
Steve Peterson, Ronny Fike, Joyce Davis, and Irv Peterson, through their
real estate agent, Amy Wienands, entered into an agreement with
Mitchell Nelsen to sell Nelsen their parents’ house. Wagner was retained
by the sellers to assist in this transaction. The sellers subsequently filed
a complaint with the Board, asserting Wagner had failed to diligently and
promptly represent them in the transaction. Upon the Board’s inquiry,
Wagner denied the allegation stating “[he] felt that [he] timely handled
the . . . matter based on the file and results.”
The Board called two witnesses to testify at the hearing. Realtor
Wienands testified the sellers entered into a purchase agreement with
Nelsen on January 10, 2008. On February 27, 2008, the day before the
scheduled closing, Wienands received the title opinion from the title
company. The opinion raised several concerns with the title. Wienands
testified none of the issues were extraordinary, and she believed the
sellers’ attorney, Wagner, should have been able to resolve the issues
within a week. 3 The parties, however, agreed to continue the closing for
3The issues to be resolved involved clearing up back child support owed by one
of the sellers and establishing that one of the sellers had been erroneously identified as
a debtor due to a name similarity.
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two weeks in order to give Wagner ample time to effect a resolution. A
new closing date was set for March 11, 2008.
Thereafter, Wienands testified she encountered a great deal of
difficulty in contacting the respondent to ascertain the status of the title
issues. Numerous and frequent calls to Wagner went unanswered.
When contact was made, Wagner’s response about the status of the title
opinion was that it was “almost done” or was “ready to go out” and then
nothing would happen. During this period of time, Wienands was
fielding inquiries from both the buyer and the sellers. She relayed these
inquiries to Wagner, who failed to respond. Moreover, Wienands testified
that Wagner never requested additional time or communicated to her
that he was having difficulty resolving the concerns with the title.
Ultimately, the title issues were resolved, and the real estate
transaction was closed on April 24, 2008, eight weeks after it was
originally scheduled to close and six weeks after the extension. During
this time, the buyer was assessed a rate lock extension fee. According to
Wienands, a rate lock allows a buyer to “lock in” an interest rate for a
period of time. Extensions on a rate lock can generally be obtained at a
cost of between $300 and $600. In this case, Wienands testified the
mortgage company agreed to pay the rate lock extension fee for the
buyer.
Seller Steve Peterson was also called by the Board to testify. His
recollection of events corresponded with Wienands’. Peterson testified
numerous phone calls made by him and his siblings to Wagner went
unanswered. In addition, Peterson testified that one of the title issues
involved his back child support. Peterson testified that he resolved this
issue on March 3, 2008, and faxed the information to Wagner’s office on
that date. Peterson also informed the Board that, although the real
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estate transaction was completed on April 24, 2008, there was no
accounting until July 8, 2008.
At the hearing, Wagner did not cross-examine either of the Board’s
witnesses, and he did not put on any evidence of his own. Furthermore,
he declined to make any statement to the Commission and submitted no
brief. In other words, he provided no explanation to the Commission for
his actions. Prior to the hearing, Wagner admitted he did not respond in
a timely manner to the Board’s letter of inquiry regarding his handling of
this matter.
Based upon the evidence presented, the Commission concluded
Wagner failed to handle this real estate matter in a timely manner and
failed to sufficiently communicate with his clients. In addition, the
Commission agreed with the Board that these actions violated the Iowa
Rules of Professional Conduct, specifically rules 32:1.1, 32:1.3, 32:1.4,
32:8.1(b) (lawyer in a disciplinary proceeding shall not fail to respond to
inquiry from the board), and 32:8.4(a). 4
Upon our de novo review, we agree the evidence supports a finding
by a convincing preponderance of the evidence that the respondent
violated rule 32:1.3, requiring a lawyer to act with reasonable diligence
and promptness when representing a client; rule 32:1.4, requiring a
lawyer to keep his client reasonably informed and to promptly comply
with requests for information; rule 32:8.1(b), requiring a lawyer to
promptly respond to inquiries from the Board; and rule 32:8.4(a),
providing it is misconduct for a lawyer to violate an ethical rule.
4The Commission also found Wagner’s failure to respond to the Board’s inquiry
violated rule 32:8.4(d), prohibiting conduct prejudicial to the administration of justice.
The Board’s complaint does not, however, make this allegation under Count IV.
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We disagree, however, that the Board satisfactorily established
Wagner failed to provide competent representation in this case.
“Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation.” Iowa R. Prof’l Conduct 32:1.1. Although Wagner’s
handling of the title issues was dilatory, there was no evidence to
support a finding that Wagner did not possess the necessary legal
knowledge and skill to complete the task at hand. Moreover, from all
reports, the representation, though slow, was appropriate. The Board
presented no evidence to support a finding of a violation of rule 32:1.1.
The Board also alleged in its complaint that Wagner’s handling of
the real estate transaction matter involved misrepresentation. See Iowa
R. Prof’l Conduct 32:8.4(c). The Commission did not address this
allegation. Upon our de novo review, we conclude the evidence
established by a convincing preponderance of the evidence that Wagner
engaged in conduct involving misrepresentation. Wienands testified that,
on several occasions, Wagner advised her that the title opinion
documents were prepared and would be delivered that afternoon or the
following morning. They never were. Repeated claims that the
documents were ready and would be delivered shortly, followed by a
failure to deliver said documents, supports the conclusion the
documents were, in fact, not ready and that Wagner was misrepresenting
this fact to the agent to the detriment of his clients.
III. Sanctions.
The Commission recommends Wagner’s license to practice law be
suspended with no possibility of reinstatement for a period of ninety
days. We may, however, impose a lesser or greater sanction than that
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recommended by the Grievance Commission. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Plumb, 766 N.W.2d 626, 629 (Iowa 2009).
“There is no standard sanction for a particular type of misconduct,
and though prior cases can be instructive, we ultimately determine an
appropriate sanction based on the particular circumstances of each
case.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d
437, 443 (Iowa 2007). In determining the appropriate sanction for
attorney misconduct,
we consider the nature and extent of the respondent’s ethical
infractions, his fitness to continue practicing law, our
obligation to protect the public from further harm by the
respondent, the need to deter other attorneys from engaging
in similar misconduct, our desire to maintain the reputation
of the bar as a whole, and any aggravating or mitigating
circumstances.
Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Kallsen, 670 N.W.2d
161, 164 (Iowa 2003).
The respondent’s ethical violations involved neglect of several
clients’ matters. One consideration in determining the appropriate
discipline is the harm resulting from the attorney’s neglect. Iowa
Supreme Ct. Att’y Disciplinary Bd. v. Casey, 761 N.W.2d 53, 61 (Iowa
2009).
It is undisputed the respondent’s neglect caused great harm to his
clients. Wagner’s neglect of the Bornong estate resulted in the
assessment of significant tax penalties and fees. Moreover, his inactions
made it necessary for the estate to retain new counsel to close the estate
and to bring legal action against the respondent to recoup those
penalties and unearned attorney fees. Wagner’s neglect of Ronald
Bearbower’s asbestos claim resulted in loss of the claim on statute-of-
limitations grounds, while his neglect of Dorothy Bearbower’s personal
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injury claim resulted in the claim’s dismissal. By the time the action was
dismissed, the statute of limitations had run, effectively foreclosing her
claim as well. While it does not appear Wagner’s neglect of the Nelsen
real estate matter resulted in monetary loss to his clients, the sellers, it
did result in a rate lock extension cost to the buyer. Additionally, all of
Wagner’s clients were harmed by stress caused by Wagner’s neglect.
When attorney misconduct involves neglect, sanctions have ranged
from a public reprimand to a six-month suspension. Casey, 761 N.W.2d
at 61. “When neglect is compounded by other misconduct, a more severe
sanction may be required.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Tompkins, 733 N.W.2d 661, 670 (Iowa 2007). “Often, the distinction
between the punishment imposed depends upon the existence of
multiple instances of neglect, past disciplinary problems, and other
companion violations.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006).
In this case, the Board established the respondent committed
several additional ethical violations. Wagner’s premature taking of
probate fees and his failure to appropriately deposit the unearned fees
into the client trust account constitutes a serious ethical infraction.
Casey, 761 N.W.2d at 62. In the past, we have held that a deliberate
conversion of client funds will warrant revocation of an attorney’s license.
See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694,
704 (Iowa 2008). However, where an attorney has a colorable future
claim to the funds, we have imposed a lesser sanction. Casey, 761
N.W.2d at 62. At the time Wagner took the fees, he had a colorable
future claim to them upon closure of the estate. Nevertheless, while
revocation may not be required, we find Wagner’s failure to return, upon
request, the unearned fees adds to the seriousness of his initial action of
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prematurely appropriating his fee. See Iowa Supreme Ct. Bd. of Prof’l
Ethics & Conduct v. Apland, 577 N.W.2d 50, 56 (Iowa 1998) (noting the
failure to return unearned advance fees constitutes a major disciplinary
problem).
Wagner’s misrepresentations to the court and to his clients also
weigh in favor of a more serious sanction. “Misrepresentation to the
court constitutes a serious breach of professional ethics, warranting a
more severe sanction than neglect.” Gottschalk, 729 N.W.2d at 821. “At
its most basic level a court must rely, not alone on the honesty of
lawyers, but also on the reliability of factual representations submitted to
the court.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Ackerman,
611 N.W.2d 473, 474 (Iowa 2000).
Wagner did not fully cooperate with the Board’s investigation in the
Nelsen matter. “We expect and demand attorneys to cooperate with
disciplinary investigations.” Iowa Supreme Ct. Att’y Disciplinary Bd. v.
Rickabaugh, 728 N.W.2d 375, 381 (Iowa 2007). Thus, the respondent’s
failure to cooperate is another act of misconduct requiring our
consideration in crafting the appropriate discipline. See Casey, 761
N.W.2d at 60.
In addition to the established ethical violations, we consider
whether any aggravating circumstances exist. Prior discipline is an
aggravating factor to be considered. Id. at 62. Our records reveal the
respondent was publicly reprimanded twice in 1999—once for neglect
and once for misrepresentation. We also consider any mitigating factors.
Here, Wagner failed to provide the Commission with any reasons in
mitigation for his behavior. We, like the Commission, conclude that
because no mitigating circumstances by way of explanation or excuse
have been provided, there is nothing for us to consider.
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In fashioning the appropriate sanction, “we look to prior similar
cases while remaining cognizant of their limited usefulness due to the
variations in their facts.” Id. We also consider the goals of discipline:
deterrence, protection of the public, maintenance of the reputation of the
Bar, and the actor’s fitness to practice law. Iowa Supreme Ct. Att’y
Disciplinary Bd. v. Humphrey, 738 N.W.2d 617, 621 (Iowa 2007).
Considering the respondent’s ethical violations and his prior disciplinary
actions, we believe a more severe sanction than that recommended by
the Commission is warranted. Wagner’s neglect of his clients resulted in
significant harm to them. In addition, his other ethical violations were
serious and not inconsequential to his clients, the court, or the public.
We find a six-month suspension is warranted. Cf. id. at 619–21 (neglect
of and misrepresentations in six estates and premature taking of probate
fees in three estates warranted six-month suspension).
IV. Conclusion.
Based upon Wagner’s neglect of his clients’ cases, his
misrepresentations to the court and others, his premature taking of
probate fees and failure to deposit them in his client trust account, his
failure to promptly return unearned fees, his failure to promptly respond
to the Board, and his prior disciplinary record, we believe Wagner’s
license to practice law should be suspended for a minimum of six
months. Accordingly, his license is suspended indefinitely with no
possibility of reinstatement for six months. This suspension shall apply
to all facets of the practice of law. Iowa Ct. R. 35.12(3). The respondent
shall provide all notifications required by Iowa Court Rule 35.22. Upon
any application for reinstatement, Wagner shall have the burden to show
he has not practiced law during the period of suspension and that he
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meets the requirement of Iowa Court Rule 35.13. Costs are taxed to
Wagner pursuant to Iowa Court Rule 35.26(1).
LICENSE SUSPENDED.
This opinion shall be published.