IN THE COURT OF APPEALS OF IOWA

No. 17-0312

Filed August 1, 2018

CYNTHIA PESCE,

Plaintiff-Appellant,

vs.

CITY OF DES MOINES and THE ANIMAL RESCUE LEAGUE OF IOWA, INC.,

Defendants-Appellees.

JAYSEN MCCLEARY,

Petitioner,

vs.

IOWA DISTRICT COURT,

Respondent.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Bradley McCall, Judge.

Cynthia Pesce appeals the district court’s dismissals and reassignments of 

her seized property claims. Her attorney Jaysen McCleary appeals the imposition 

of sanctions. AFFIRMED ON APPEAL. WRIT ANNULLED.

Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for 

appellant.

Michelle R. Mackel-Wiederanders, Assistant City Attorney, for appellee City 

of Des Moines.

Jason M. Casini of Whitfield & Eddy, P.L.C., Des Moines, for appellee The 

Animal Rescue League of Iowa.
2

Considered by Vogel, P.J., and Doyle and Bower, JJ. McDonald, J., takes 

no part.
3

PER CURIAM.

Cynthia Pesce appeals the district court’s actions in reassigning her seizedproperty claim to a civil matter, dismissing her second seized-property claim, and 

holding a hearing after she filed a motion to dismiss and notices of appeal. Her 

attorney, Jaysen McCleary, petitions for writ of certiorari regarding the district 

court’s imposition of sanctions for his actions in the proceeding. We find the district 

court did not err or abuse its discretion in managing Pesce’s seized-property claims 

or in holding the hearing. We also find the district court did not abuse its discretion 

in imposing sanctions. Therefore, we affirm the actions of the district court, and 

we annul the writ of certiorari. 

I. Background Facts and Proceedings

On April 7, 2016, Cynthia Pesce, through her attorney Jaysen McCleary,

filed her first Application for Return of Seized Property, naming the City of Des 

Moines (City) and the Animal Rescue League (ARL) as defendants. According to 

the application, one of her four dogs allegedly bit someone on March 19. In 

response, the City took control of all four dogs and placed them in quarantine. 

When the quarantine period ended on March 29, the City transferred control of the 

dogs to the ARL, and the ARL refused to return the dogs to Pesce.1 Pesce sought 

return of the dogs as seized property under Iowa Code chapters 809 and 809A 

(2016), and she claimed conversion and constitutional violations. Also on April 7, 

she requested—and the court granted without a hearing—an “emergency stay,”

which ordered the City and ARL not to destroy or allow the “dogs to be adopted 

 

1 The City would later assert Pesce failed to promptly retrieve her dogs after the quarantine 

period had passed resulting in the City transferring the dogs to the ARL. 
4

without further order.” McCleary communicated with the ARL about Pesce and the 

dogs multiple times before filing the petition, but he did not notify them about the 

application or stay until minutes after the court granted the stay. The court initially 

accepted the application as a seized-property claim in case number SPCE079882, 

but it later reassigned the application as a civil claim in case number CVCV051695.

On April 11, the ARL filed a motion seeking to vacate or modify the stay, 

claiming Pesce had misconstrued the facts and the law. Among its claims, the 

ARL asserted Pesce failed to provide notice or show why it should not provide 

notice before requesting the stay, as required by rule. The court initially scheduled 

a hearing on the matter for May 26. On Pesce’s motion, the court allowed 

McCleary to appear telephonically for the hearing because he was temporarily 

living outside Iowa. On May 23, Pesce filed a motion to continue the hearing due 

to illness on the part of McCleary. On May 25, the court continued the hearing 

until June 2 at 8:00 a.m., and it ordered Pesce to post a bond for the stay. Pesce 

never posted a bond as ordered. 

On the morning of June 1, Pesce filed a second Application for Return of 

Seized Property. The second application named only the City as a defendant, 

repeated the factual allegations from the first application, and only sought return 

of the dogs under section 809A.8 and another stay. The second application also 

contained a preliminary statement acknowledging the first application “that 

contained additional actions for relief; however, the additional actions may have 

caused the court to not recognize the application for seized property.” The clerk 

of court accepted the second application as a seized property case and assigned 

it to a judge on the criminal docket under case number SPCE080114. That 
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afternoon, McCleary sent an email to the judge assigned to SPCE080114 to alert 

her to the filing and ask her to “order the stay before leaving today.” Later that day, 

that judge forwarded McCleary’s email to the judge assigned to CVCV051695, who 

then denied the second application and ordered SPCE080114 closed with the 

pleadings reassigned to CVCV051695 with the first application. 

On June 2 at 7:19 a.m., forty-one minutes before the scheduled start of the 

hearing, McCleary sent an email to the court and opposing counsel saying he 

would be fifteen minutes late for the hearing because “among other things” he runs 

“an animal rescue and yesterday came into possession of a 1 day old male bison.” 

At 7:45 and 7:47, Pesce filed separate notices of appeal for case numbers 

SPCE079882 and SPCE080114, both of which were signed by McCleary. One 

notice claimed the “stay order must be obeyed as [the court] has lost jurisdiction 

to modify or vacate the stay” due to the appeal. At 8:01, one minute after the 

scheduled start of the hearing, Pesce filed a motion for case number 

CVCV051695, signed by McCleary, captioned “Motion to Dismiss Without 

Prejudice the Remaining Claims Pursuant to 1.943 Until the Matters on Appeal Are 

Decided in SPCE079882 and SPCE080114.” At 8:06, McCleary sent another 

email to the court and opposing counsel:

I will not be able to attend the hearing today due to an 

emergency with my one day old bison calf. I apologize to all for the 

inconvenience, however, the issues involved in the scheduled 

hearing are now on appeal to the Iowa Supreme Court and the 

remaining causes of action have been dismissed pursuant to [rule]

1.943 without prejudice and this court lacks jurisdiction to deny this 

motion as well as the fact this court lacks jurisdiction regarding the 

matters that are now on appeal before the Iowa Supreme Court.

If the court believes any matters remain the undersigned 

requests a continuance for the hearing due to good cause regarding 

this emergency. 
6

At 8:11, Pesce filed a motion for continuance, signed by McCleary, claiming there 

are no “matters left for this court to rule on but in case the court disagrees the 

undersigned requests a continuance of this hearing due to good cause.” At 9:30, 

she filed a notice of appeal for case number CVCV051695, again signed by 

McCleary. 

At the June 2 hearing, the court briefly went on the record soon after 8:00 

a.m., recessed to consider McCleary’s filings and emails, and went back on the 

record without McCleary around 8:30. After hearing arguments from the ARL and 

the City, the court vacated the stay by oral order. On June 6, the court entered a 

written order noting Pesce “failed to demonstrate good cause for a continuance” 

and vacating the stay. 

On June 15, the ARL filed a motion for sanctions against McCleary on 

several grounds. Following another hearing, the court granted the sanctions, 

finding both applications and stay requests were not warranted by existing law or 

a good faith argument. The court ordered McCleary to pay to the ARL $2688 for 

the cost of boarding the dogs during the stay and $8392.50 for attorney fees, 

totaling $11,080.50. 

On January 17, 2017, our supreme court issued an order regarding Pesce’s 

dismissals and appeals filed June 2, 2016. A three-justice panel determined Pesce 

had voluntarily dismissed all of her claims except the seized-property claim, and it 

determined her appeals are interlocutory and denied them. The panel remanded 

the case to the district court for further proceedings on the seized-property claim. 

On January 25, the district court relied on a factually-similar appellate case to 
7

dismiss Pesce’s seized-property claim. Rumsey v. City of Des Moines, No. 15-

1948, 2016 WL 7395733, at *2 (Iowa Ct. App. Dec. 21, 2016) (“The district court 

aptly determined the city did not seize [the dog] under section 809.1(1)(c) and 

section 809.5(1) did not provide for the dog’s return.”). 

Pesce now appeals the district court’s actions in reassigning her first seized 

property application, dismissing her second application, and holding a hearing after 

she filed her dismissal and notices of appeal. McCleary also challenges the order 

of sanctions via petition for writ of certiorari.

II. Reassignment of the First Application and Dismissal of the 

Second Application

Pesce appeals the district court’s actions in reassigning her first application 

for return of seized property and dismissing her second application. When the 

statutes and rules are silent, the “district court has the inherent authority to manage 

its docket and calendar,” subject to due process limitations. Spitz v. Iowa Dist. Ct., 

881 N.W.2d 456, 467 (Iowa 2016). The court may also “consolidate separate 

actions which involve common questions of law or fact” unless prejudice will result. 

Iowa R. Civ. P. 1.913. To the extent she argues the court violated her constitutional 

right to due process by managing her applications, we review the claim de novo. 

Id. at 464. To the extent she argues the court’s management of her applications 

caused her prejudice, we review the claim for abuse of discretion.

Pesce argues reassigning her applications into a civil case triggered “the 

rules of civil procedure instead of the specific proceedings and timelines that are 

set forth in chapters 809 and 809A,” thus depriving her of the opportunity to have 

her seized-property claim heard. She continues, “If the City believed that chapters 
8

809 and 809A did not apply in this matter, it could have filed a motion to dismiss, 

allowed Pesce time to respond, and have a hearing on the issue, at which time the 

district court could determine whether to dismiss the claim.” Yet this is essentially

the procedure that occurred. In reassigning the first application, the court retained 

all of Pesce’s claims for consideration in case number CVCV051695. Because the 

second application merely repeated the seized-property claim from the first 

application against only one party, the court was able to dismiss the second 

application while fully addressing the seized-property claim with the first application 

in case number CVCV051695. The City and the ARL filed motions related to 

Pesce’s claims, and the court responded by scheduling a hearing on the stay—

which Pesce sought to continue twice—and providing Pesce with ample time and 

opportunity to respond. The court ultimately addressed Pesce’s filings by honoring 

her motion to dismiss the non-seized-property claims, vacating the stay after notice 

and a hearing, and following precedent to dismiss her seized-property claim. 

Pesce does not point to any way the court’s management of her applications 

affected her due process rights or caused her prejudice. Therefore, the court did 

not err or abuse its discretion in reassigning her first application or dismissing her 

second application.

III. Holding the Hearing

Pesce next appeals the district court’s decision to hold a hearing on her 

claims after she dismissed her petition and filed notices of appeal. To the extent 

she argues her filings deprived the district court of jurisdiction, we review rulings 

on legal questions for correction of errors of law. Fry v. Blauvelt, 818 N.W.2d 123, 

128 (Iowa 2012). Our supreme court determined the notices of appeal were 
9

applications for interlocutory appeal. The district court retains jurisdiction of 

matters under interlocutory appeal. Iowa R. App. P. 6.104(1)(f) (“The filing of an 

application for interlocutory appeal does not stay district court proceedings.”). 

Therefore, the court did not err in determining it had jurisdiction to hold a hearing 

on the claims after Pesce filed the notices of appeal.

To the extent Pesce argues the district should have granted her motion to 

continue the hearing, “[t]rial courts have broad discretion in deciding whether to 

grant motions for continuances; absent a clear abuse of this discretion, we will not 

interfere.” Dep’t of Gen. Servs. v. R.M. Boggs Co., 336 N.W.2d 408, 410 (Iowa 

1983); see also Iowa R. Civ. P. 1.911(1) (“A continuance may be allowed for any 

cause not growing out of the fault or negligence of the movant, which satisfies the 

court that substantial justice will be more nearly obtained.”). McCleary, on behalf 

of Pesce, had already sought to continue the hearing once. McCleary first notified 

the court and counsel of his conflict forty-one minutes before the hearing. The 

conflict arose from McCleary’s animal rescue and not his professional 

responsibilities as an attorney. McCleary continued to send emails and submit 

filings in the minutes before and after the hearing’s scheduled start despite his 

conflict and despite the prior approval for him to appear telephonically. He finally 

notified the court and counsel he would not participate in the hearing by sending

an informal email six minutes after the scheduled start and by filing the motion for 

continuance eleven minutes after the scheduled start. The court noted it was 

“troubled” by McCleary’s actions. The City and the ARL were prepared to 

participate in the hearing as scheduled. Pesce had not posted a bond to cover the 

ARL’s substantial costs in boarding the dogs, and continuing the hearing would 
10

have required the ARL to continue boarding the dogs. Under these facts, the 

district court did not abuse its discretion in finding Pesce had not shown good 

cause to continue the hearing. 

IV. Sanctions

Finally, McCleary challenges the district court’s order of sanctions against 

him. “The proper means to review a district court's order imposing sanctions is by 

writ of certiorari.” Everly v. Knoxville Cmty. Sch. Dist., 774 N.W.2d 488, 492 (Iowa 

2009). “We review a district court’s decision on whether to impose sanctions for 

an abuse of discretion.” Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 

2009). We are bound by the court’s factual findings if they are supported by 

substantial evidence. Id.

The ARL claims McCleary violated Iowa Rule of Civil Procedure 1.413(1), 

which states:

Counsel’s signature to every motion, pleading, or other paper shall 

be deemed a certificate that: counsel has read the motion, pleading, 

or other paper; that to the best of counsel’s knowledge, information, 

and belief, formed after reasonable inquiry, it is well grounded in fact 

and is warranted by existing law or a good faith argument for the 

extension, modification, or reversal of existing law; and that it is not 

interposed for any improper purpose, such as to harass or cause an 

unnecessary delay or needless increase in the cost of litigation. . . .

If a motion, pleading, or other paper is signed in violation of this rule, 

the court, upon motion or upon its own initiative, shall impose upon 

the person who signed it, a represented party, or both, an appropriate 

sanction, which may include an order to pay the other party or parties 

the amount of the reasonable expenses incurred because of the filing 

of the motion, pleading, or other paper, including a reasonable 

attorney fee. 

“Compliance with the rule is determined as of the time the paper is filed.” Barnhill, 

765 N.W.2d at 272. “[T]he standard to be used is that of a reasonably competent 

attorney admitted to practice before the district court.” Id. 
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The district court found McCleary violated rule 1.413(1) in filing the first and 

second applications and accompanying stay requests. The ARL asserts McCleary 

requested a temporary injunction instead of a stay; but regardless of how the action 

is characterized, the same rules apply when making the request. Teleconnect Co. 

v. Iowa State Commerce Comm’n, 366 N.W.2d 511, 514 (Iowa 1985) (finding 

issuance of a bond “before issuance of a stay should be required in these 

circumstances in the same manner as for an injunction under [current rule 1.508]”). 

The ARL claims McCleary requested a temporary injunction without providing 

notice and, as such, he “must certify to the court in writing either the efforts which 

have been made to give notice to the adverse party . . . or the reason supporting 

the claim that notice should not be required.” Iowa R. Civ. P. 1.1507. McCleary 

argues he did not request a temporary injunction, and therefore his actions were 

not subject to rule 1.1507. However, McCleary provides no authority to support 

his argument that his request for an “emergency stay” was distinct from a 

temporary injunction and not subject to any prior notice requirement. Furthermore, 

the ARL raised the notice requirements in response to the first application, which 

would have alerted a reasonable attorney of the need to provide notice before 

requesting a near-identical stay with the second application. Therefore, the court 

did not abuse its discretion in finding McCleary failed to meet the standard of a 

reasonably competent attorney when he filed the first and second applications and 

requests for stay in violation of rule 1.413(1).

McCleary also contests the amount of the sanctions. When sanctions are 

appropriate, our supreme court has provided several factors to determine the 

amount of sanctions:
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a. the good faith or bad faith of the offender;

b. the degree of willfulness, vindictiveness, negligence or 

frivolousness involved in the offense;

c. the knowledge, experience and expertise of the offender;

d. any prior history of sanctionable conduct on the part of the 

offender;

e. the reasonableness and necessity of the out-of-pocket expenses 

incurred by the offended person as a result of the misconduct;

f. the nature and extent of prejudice, apart from out-of-pocket 

expenses, suffered by the offended person as a result of the 

misconduct;

g. the relative culpability of client and counsel, and the impact on 

their privileged relationship of an inquiry into that area;

h. the risk of chilling the specific type of litigation involved;

i. the impact of the sanction on the offender, including the 

offender’s ability to pay a monetary sanction;

j. the impact of the sanction on the offended party, including the 

offended person’s need for compensation;

k. the relative magnitude of sanction necessary to achieve the goal 

or goals of the sanction;

l. burdens on the court system attributable to the misconduct, 

including consumption of judicial time and incurrence of juror fees 

and other court costs;

m. the degree to which the offended person attempted to mitigate 

any prejudice suffered by him or her;

n. the degree to which the offended person’s own behavior caused 

the expenses for which recovery is sought;

o. the extent to which the offender persisted in advancing a position 

while on notice that the position was not well grounded in fact or 

warranted by existing law or a good faith argument for the 

extension, modification or reversal of existing law; and

p. the time of, and circumstances surrounding, any voluntary 

withdrawal of a pleading, motion or other paper.

Barnhill, 765 N.W.2d at 276–77.

The court awarded $11,080.50 in sanctions, which is the entire amount the 

ARL sought for its attorney fees and the cost of boarding the dogs. The court found 

McCleary’s “actions in initiating, then abandoning, the claims in this case were the 

proximate cause of all of the costs and attorney fees incurred by the ARL.” The 

court noted McCleary did not notify the ARL of the first application until minutes 

after entry of the stay, the first hearing was continued on his motion, Pesce never 
13

paid a bond as ordered, and McCleary voluntarily dismissed most of Pesce’s 

claims minutes before declining to participate in the second hearing. The court 

also noted the ARL’s non-profit status. As discussed above, McCleary had the 

opportunity to argue the validity of Pesce’s claims throughout the proceeding, and 

he had the opportunity to specifically contest the sanctions at a separate hearing. 

Therefore, the district court did not abuse its discretion in imposing sanctions of 

$11,080.50.

V. Conclusion

The district court did not err or abuse its discretion in reassigning Pesce’s 

first application or in dismissing her second application. The district court also did 

not err or abuse its discretion in holding a hearing after she filed a motion to dismiss 

and notices of appeal. Finally, the district court did not abuse its discretion in 

imposing sanctions against McCleary for his actions in the proceeding. 

AFFIRMED ON APPEAL. WRIT ANNULLED.