KEITH ROBERT BROWN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-901 / 07-0212
Filed December 28, 2007
KEITH ROBERT BROWN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,
Judge.
Keith Robert Brown appeals the district court decision denying his motion
for attorney fees related to his postconviction relief application. AFFIRMED.
Michael E. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, and Michael J. Walton, County Attorney, for appellee State.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
HUITINK, P.J.
Keith Robert Brown appeals the district court decision denying his motion
for attorney fees related to his postconviction relief application. We affirm.
I. Background Facts and Prior Proceedings
In 1999 Brown was convicted of second-degree murder, first-degree
kidnapping, willful injury, and conspiracy to commit willful injury for his role in the
death of Virgil Engelkens. This conviction was affirmed on appeal.
In 2001 Brown, with help from his parents, paid a private attorney $25,000
to handle his postconviction relief action. The district court denied his petition for
postconviction relief, but our court reversed the district court and remanded for a
new trial. In so ruling, we chose not to address Brown’s claims of prosecutorial
misconduct, but found his trial counsel was ineffective for failing to object to
inadmissible evidence and for failing to request a specific jury instruction. After a
second jury trial in June 2005, Brown was once again convicted of the counts
listed above.
Brown filed a pro se “Motion to Recover Attorney Fees & Costs” pertaining
to the $25,000 he had paid to his postconviction relief counsel. In this motion,
Brown claimed he was entitled to recover all of his attorney fees and costs, plus
interest, “pursuant to Iowa Code §§ 625.1, 625.5 and 625.21 (2005), but not
limited thereto, . . . .”
In a brief ruling denying Brown’s motion, the court stated:
The Court notes that the applicant was successful on his appeal
herein and costs were assessed against the respondent pursuant
to a bill of costs filed December 27, 2004. Attorney fees are not
costs as defined in Sections 625.1 and 625.5, Iowa Code (2005).
The applicant has provided the Court no authority for his claim for
3
recovery of attorney fees. The Court concludes that the motion
should be denied.
This ruling is the subject of the present appeal.
II. Standard of Review
We review postconviction relief proceedings on error. Ledezma v. State,
626 N.W.2d 134, 141 (Iowa 2001).
III. Analysis
On appeal, Brown abandons his claim for attorney fees under Iowa Code
chapter 625. He admits “there is no statutory or contractual authority specifically
authorizing attorney fees in the current case” and that chapter 625 “is not
applicable” to his claims made on appeal. 1
Instead, he raises two new
arguments, both of which rely on allegations of prosecutorial misconduct in the
first criminal trial.
The first argument is that the court should have used its
equitable powers to grant his requested relief pursuant to a “rare” common law
exception set forth in Hockenberg Equipment Co. v. Hockenberg’s Equipment &
Supply Co. of Des Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993). 2 The second
argument is that the court should have granted his request as “a matter of public
policy” for his successful pursuit of the postconviction application.
1
We therefore affirm on this issue. See Iowa R. App. P. 6.14(1)(c) (“Failure in the brief
to state, to argue, or to cite authority in support of an issue may be deemed waiver of
that issue.”).
2
Hockenberg states, in pertinent part,
A party generally has no claim for attorney fees as damages in the
absence of a statutory or written contractual provision allowing such an
award. Courts have recognized a rare exception to this general rule,
however, “when the losing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.”
510 N.W.2d at 158 (quoting Alyeska Pipeline Serv. v. Wilderness Soc’y, 421 U.S. 240,
258-59, 95 S. Ct. 1612, 1622, 44 L. Ed. 2d 141, 154 (1975)).
4
Our error preservation rules require that issues must be presented to and
passed upon by the district court before they can be raised and decided on
appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998); Benavides v.
J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995).
We will not
consider an error raised for the first time on appeal, even if it is of a constitutional
dimension. Patchette v. State, 374 N.W.2d 397, 401 (Iowa 1985).
Brown’s motion before the district court did not contain either of these two
arguments and set forth no common law basis for relief. We reject Brown’s
argument that he preserved error on these claims when he set forth the code
sections for his statutory claim and then included the phrase “but not limited
thereto.” A party may not preserve every conceivable issue for appellate review
simply by indicating its desire to do so. Such an exception would swallow the
rules of error preservation. Accordingly, we will not address these claims for the
first time on appeal. See Metz, 581 N.W.2d at 600.
We affirm the ruling of the district court.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
