IN THE COURT OF APPEALS OF IOWA

No. 19-0589

Filed November 27, 2019

MARVIN MITCHELL,

Plaintiff-Appellant,

vs.

TAMMY CHRISTENSEN,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, 

Judge.

Marvin Mitchell appeals the denial of his motion to vacate the order granting 

summary judgment for Tammy Christensen. AFFIRMED.

John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellant.

Anita Dhar Miller and Benjamin T. Erickson of Grefe & Sidney, P.L.C., Des 

Moines, for appellee.

Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ. May, J. takes 

no part. 
2

DOYLE, Judge.

Marvin Mitchell appeals the denial of his motion to vacate the order granting 

summary judgment for Tammy Christensen on his tort claims. Mitchell contends 

“newly discovered” material warrants vacation of the summary judgment order. 

Because the material Mitchell provided to the court is not “newly discovered 

evidence” we affirm the district court’s denial of Mitchell’s motion.

I. Background Facts and Proceedings.

Mitchell filed a petition against Christensen, Louis Bonacci, and Erik Fisk,1

alleging claims of conversion of an engagement ring, theft of Mitchell’s mail and 

identity, defamation, publication of defamatory materials, wrongfully 

communicating with Mitchell “in a manner calculated to intimidate or annoy him, 

including threats of violence,” and prosecution of “false charges of domestic 

abuse” with the intent to, among other things, “use the legal process to harass” 

and “inflict emotional distress.” During a contentious discovery process, Mitchell 

requested production of documents including copies of text messages from 

Christensen’s cellphone account. Christensen objected. Mitchell moved to 

compel. Christensen was ordered to produce, among other things, all emails, and 

text messages from January 1, 2016 to November 2017 that contained Mitchell’s 

name. Alleging Christensen violated the order, Mitchell renewed his motion to 

compel. Christensen was again ordered to produce the records she received from 

her cellphone carrier. She failed to do so. 

 

1 Fisk was later dismissed from the suit.
3

Christensen moved for summary judgment. In resisting the motion, Mitchell 

alleged that Christensen made false statements in her deposition and failed to 

comply with his discovery requests. After a hearing, the district court granted 

summary judgment for Christensen noting, in part,

The Court has considered Mitchell’s complaint that

Christensen has not provided certain text messages in discovery. 

Mitchell does not, however, explain what evidence those text

messages would likely contain. More to the point, Mitchell does not

explain how those text messages would create fact questions

regarding Mitchell’s claims. Nor has Mitchell submitted the affidavit

required by Rule 1.981(5). Therefore, Mitchell’s complaint about

Christensen’s texts does not provide a basis to refuse summary

judgment. 

The court dismissed all claims against Christensen.

Thereafter, Bonacci reached a settlement with Mitchell. Bonacci then gave 

a deposition in which he testified that during the litigation with Christensen, he was 

aware that Christensen refused to provide documents to her counsel for discovery 

purposes and provided false documentary evidence. Based on Bonacci’s 

testimony, Mitchell petitioned to vacate or modify the summary judgment on the 

grounds Christensen practiced irregularity or fraud in obtaining the judgment and 

upon newly discovered evidence. See Iowa R. Civ. P. 1.1012(2), (6) (2018). 

Christensen resisted, arguing any alleged fraud was intrinsic fraud2 and Mitchell 

produced no newly discovered evidence in support of his petition. Mitchell then 

 

2

In order to vacate a judgment under rule 1.1012(2), a party must show the 

opposing party engaged in fraud extrinsic to the judgment. See In re Marriage of 

Cutler, 588 N.W.2d 425, 429 (Iowa 1999). “Extrinsic fraud pertains to the manner 

in which the judgment was procured.” In re Marriage of Kinnard, 512 N.W.2d 821, 

823 (Iowa Ct. App. 1993). While a judgment may be vacated under rule 1.1012(2) 

based on extrinsic fraud, it cannot be vacated based on intrinsic fraud. Phipps v. 

Winneshiek Cty., 593 N.W.2d 143, 146 (Iowa 1999). “[I]ntrinsic fraud inheres in 

the issues submitted to the court.” Id.
4

supplied the court with copies of Christensen’s telephone records, including 

twenty-two pages of text messages between Bonacci and Christensen covering 

the period February 23 through February 28, 2018.

3

 

Following a hearing, the district court denied Mitchell’s petition on two 

grounds. The court held “that the matters alleged would be in the way of an 

intrinsic fraud and, therefore, pursuant to Phipps v. Winneshiek County, 593 

N.W.2d 143 (Iowa 1999) the judgment cannot be vacated.” The court also held

“no newly discovered evidence has been provided to the Court showing the 

outcome would have been different. No evidence has been produced that is 

material to the issues in the case and is not merely cumulative and impeaching 

that would have changed the outcome.” Mitchell appeals. 

II. Scope and Standard of Review.

We review the district court’s refusal to vacate judgment for correction of 

errors at law. See In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999). We 

will reverse only if the district court has abused its discretion. In re Adoption of

B.J.H., 564 N.W.2d 387, 391 (Iowa 1997). The court has a large amount of 

discretion in determining whether to vacate a prior judgment, but the exercise of 

discretion must have some support in the record. Id.; In re Marriage of Kinnard, 

512 N.W.2d 821, 823 (Iowa Ct. App. 1993). 

 

3 Sometime after Bonacci’s deposition, Bonacci furnished some 300 pages of text 

messages to Mitchell. The 22 pages furnished to the court were a “random 

sampling” of the 300 pages. 
5

III. Analysis.

Did the district court properly deny the petition to vacate in finding that 

Mitchell failed to provide newly discovered evidence?

4

 To vacate a judgment 

based on newly discovered information under rule 1.1012(6), a party must show:

(1) the evidence is newly discovered and could not, in the exercise 

of due diligence, have been discovered prior to the conclusion of the 

trial; (2) the evidence is material and not merely cumulative or 

impeaching; and (3) the evidence will probably change the result if a 

new trial is granted.

Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa 1995). Mitchell strikes out on 

all three requirements. 

“Under Iowa law, ‘newly discovered evidence’ sufficient to merit a new trial 

is evidence which existed at the time of trial, but which, for excusable reasons, the 

party was unable to produce at the time.” See id. at 762-63. Mitchell submitted 

twenty-two pages of text messages to the court. The text messages did not exist 

at the time of the summary judgment hearing as they all postdated the hearing. So 

they do not meet the definition of “newly discovered evidence.”

Secondly, upon our examination of the text messages we, like the district 

court, find that none of the messages are material to the issues in the case. The 

text messages relevant to the litigation consisted mainly of speculation between 

Christensen and Bonacci discussing when and how the court would decide on the 

 

4 On appeal Mitchell abandons his rule 1.1012(2) fraud argument made to the 

district court. He now asserts, “under the facts and results of the present case, 

there was no ‘extrinsic’ or ‘intrinsic’ fraud practiced.” Since the district court 

properly denied the petition to vacate on the newly discovered evidence issue, we 

need not discuss the fraud issue. 

 
6

February 2018 summary judgment hearing. The messages did not concern 

Mitchell’s allegations. 

Thirdly, we find nothing in the submitted text messages that would probably 

change the result if the summary judgment is set aside and a trial granted.

So we agree with the district court that Mitchell did not present any newly 

discovered evidence material to the issues in the case showing the outcome would 

have been different. The district court properly exercised its discretion in denying 

Mitchell’s motion to vacate. We affirm.

AFFIRMED.