Opinion
No. 5-132 / 03-1626
Filed May 25, 2005
Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.
A plaintiff appeals from a district court ruling that granted summary judgment and dismissals in favor of defendants. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Eric Kenyatta Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble Cook, L.L.P., Des Moines, for appellant.
Gene R. LaSuer of Davis, Brown, Koehn, Shors Roberts, P.C., Des Moines, for appellees Iowa Orthopaedic Center and Dr. Kenney.
Mark Godwin, Deputy City Attorney, Des Moines, for appellees City of Des Moines and Officer Sickels.
Chester C. Woodburn III of Hansen, McClintock Riley, Des Moines, for appellee Osco Drug, Inc.
Heard by Mahan, P.J., and Zimmer, J., and Beeghly, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Plaintiff Peggy Crouse appeals from a district court ruling that granted summary judgment and dismissals in favor of defendants Iowa Orthopaedic Center (IOC), Dr. Timothy Kenney, the City of Des Moines (City), police officer Harley Sickels, and Osco Drug, Inc. (Osco). She claims the court erred in dismising her causes of action against the City, Officer Sickels, and Osco. While we conclude the court erred in dismissing Crouse's malicious prosecution claims against the City and Osco, we affirm the remainder of the court's decision.
I. Background Facts and Proceedings.
On November 14, 2002, Crouse filed a petition against IOC, Dr. Kenney, and Osco, which contained the following allegations. On November 14, 2000, Dr. Kenney, an employee of IOC, wrote Crouse a prescription for thirty Demerol pills. When Crouse attempted to have the prescription filled at an Osco pharmacy that same day, pharmacy employees became suspicious the "3" in "30" had been altered from a "2." When a pharmacy employee contacted Dr. Kenney's office, a nurse conferred with Dr. Kenney then confirmed the prescription had been for only twenty pills. The pharmacy employee contacted City police, who arrested Crouse. Crouse was acquitted of the ensuing criminal charge on September 19, 2001.
The petition alleged negligence by IOC, Dr. Kenney, and Osco; malicious prosecution and negligent misrepresentation by IOC and Dr. Kenney; and a claim captioned false imprisonment which was supported by allegations of defamation by the "defendants." The petition did not include the City or Officer Sickels in the caption or as parties. Crouse served Dr. Kenney and the City with this petition on February 13, 2003, ninety-one days after filing.
Count I alleged negligence by IOC and Dr. Kenney. Count II alleged negligence by Osco. Count III alleged malicious prosecution by IOC and Dr. Kenney. The petition did not contain a Count IV. Count V alleged negligent misrepresentation against IOC and Dr. Kenney. Count VI was captioned "False Imprisonment." However, the ensuing page did not contain any allegations to support a claim of false imprisonment. Rather, it contained allegations that the "defendants" had defamed Crouse.
Crouse served the petition on Osco's registered agent February 14, ninety-two days after filing. On February 20 Crouse filed a motion for enlargement of time to serve Osco, alleging that both Dr. Kenney and IOC had been timely served on February 13, and asking the court to approve its service of Osco on February 14. The court granted the motion.
On February 20 Crouse also filed an amended petition naming IOC, Dr. Kenney, Osco, the City, and Officer Sickels as defendants (amended petition). In pertinent part, the amended petition continued to allege negligence by Osco, alleged malicious prosecution and false imprisonment against the City and Osco "by and through [their] employees," and named Dr. Kenney, IOC, Osco, and the City as the previously unspecified defendants who had allegedly defamed Crouse via written statements.
Although Officer Sickles is named in the caption, and identified as the arresting officer, he is not included among the specifically identified parties to the lawsuit, nor are there any specific allegations against Officer Sickles in his individual capacity.
Counts I and II continued to allege negligence by IOC and Dr. Kenney, and Osco, respectively. Count III now alleged malicious prosecution by IOC, Dr. Kenney, Osco, and the City. Count VI now specifically alleged false imprisonment by Osco and the City, and for the first time contained supporting allegations. The defamation claim was now captioned as Count VII. It repeated the vast majority of defamation-related allegations in the amended petition, but now specifically named Dr. Kenney, IOC, Osco, and the City.
On February 24, 2003, the City filed a motion to dismiss alleging untimely service. On February 25 Osco filed a combined motion, resisting Crouse's motion for enlargement of time to serve Osco and seeking dismissal of the petition for untimely service. On February 28 Officer Sickels filed a motion to dismiss claiming the suit was filed beyond the statute of limitations. The court set the motions for hearing on March 24, 2003. The court subsequently sustained Osco's motion to reconsider, and set aside the order granting Crouse an enlargement of time to serve Osco.
On March 11, 2003, Crouse voluntarily dismissed her amended petition as to all defendants under Iowa Rule of Civil Procedure 1.943. She then immediately filed a second petition and jury demand against the same defendants, citing Iowa Code section 614.10 (2001) (second petition). The second petition mirrored the amended petition in all relevant respects.
The second petition now named Officer Sickels as one of the specifically identified parties to the lawsuit, and Count VI, False Imprisonment, now made an allegation against "Defendant City, by and through its employees (in particular Defendant Sickels[)]." However, as with the amended petition, no count in the second petition made any specific allegations against Officer Sickels in his individual capacity.
The City and Officer Sickels filed a motion for summary judgment. They asserted several bases for dismissal of Crouse's claims, including assertions that Crouse had failed to serve Officer Sickels, that her claims were barred under the two-year statute of limitations in section 614.1(2), and that section 614.10 could not be applied to continue the amended petition as the dismissal of the amended petition was due to Crouse's own negligence. IOC and Dr. Kenney filed a motion to dismiss, alleging the second petition failed to state a viable claim. Osco joined in the motions, to the extent they were applicable to the claims against it. In resistance, Crouse asserted that none of her claims accrued until she was acquitted of the criminal charge, and that her voluntary dismissal of the amended petition was not tantamount to a dismissal based upon her own negligence.
Osco had filed a motion to dismiss alleging improper service of the second petition, but withdrew that motion after Crouse filed affidavits of returns of service indicating that the second petition had been timely served on the City, Dr. Kenney, IOC, and Osco.
In its September 5, 2003, order the court first addressed the summary judgment motion of the City and Officer Sickels. The court concluded the two-year statute of limitations on Crouse's malicious prosecution claim did not begin to run until September 19, 2001, the date of her acquittal. However, the court concluded that her "remaining claims" accrued on November 14, 2000, the date of her arrest, as it was undisputed the underlying acts for those claims occurred on that day. The court concluded that "[w]ith the exception of [the] malicious prosecution claim" the remaining claims must be dismissed as they were filed more than two years after they accrued. The court further determined the second petition was not a continuation of the amended petition under section 614.10, because Crouse failed to plead and prove that the failure of the former action was not caused by her own negligence. The court therefore dismissed the second petition.
The court then addressed the motion to dismiss filed by IOC and Dr. Kenney. The court treated the motion as one for summary judgment, and granted IOC and Dr. Kenney summary judgment on the malicious prosecution claim. The court did not specifically address "the remaining claims," noting it had already concluded that they were barred by the statute of limitations.
Crouse filed a motion for reconsideration, seeking clarification of which claims and parties remained in the suit. In its September 25, 2003, ruling, the court stated that because the amended petition was not continued under section 614.10 no claims in that petition survived; that every claim in the second petition, except for malicious prosecution, was barred by the statute of limitations; and that the malicious prosecution claim survived the September 5 order. The court then stated it had granted summary judgment in favor of all defendants named in the second petition and that all claims included in that petition were dismissed.
Crouse appeals. She contends the court erred in ruling her causes of action against the City, Officer Sickels, and Osco accrued on the date of her arrest rather than the date of her acquittal on the ensuing criminal charge. She also asserts the court erred in ruling her amended petition, which was voluntarily dismissed, was not continued under section 614.10 by her second petition.
Crouse does not appeal the district court's dismissal of her claims against IOC or Dr. Kenney.
Osco has filed a motion to dismiss the appeal, asserting the notice of appeal was defective. Crouse resists the motion. The supreme court has ordered the motion to dismiss to be submitted with the appeal.
II. Scope and Standard of Review.
We review the district court's summary judgment rulings for the correction of errors at law. Iowa R. App. P. 6.4; Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut. Reins. Co., 654 N.W.2d at 535. However, when a motion for summary judgment is supported, a party resisting summary judgment may not simply rely upon the pleadings; she must "set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered." Iowa R. Civ. P. 1.981(5).
III. Motion to Dismiss.
We first address Osco's contention that the appeal must be dismissed because the notice of appeal, which did list Osco in the caption and state that it was an appeal from an order granting summary judgment to all the named defendants, was not addressed to or served upon Osco or its attorney. In her resistance Crouse points out that Osco had notice of the content of her appeal, as she served her brief on Osco's counsel, and asserts that Osco cannot allege any prejudice based on the error. Neither party has cited statutory or case law in support of their respective positions. Upon our review of pertinent authorities, we find Crouse has the better argument.
Under Iowa Rule of Appellate Procedure 6.6 it is the filing of the signed notice with the clerk, not the service on opposing parties or their counsel, that perfects the appeal. Our supreme court has held that service of the notice is not jurisdictional, but that "[n]oncompliance with the rule will . . . subject a party to sanctions including possible dismissal in appropriate cases." Rowen v. Lemars Mut. Ins. Co., 347 N.W.2d 630, 638 (Iowa 1984) (interpreting former rule 6(a)). In determining whether dismissal was appropriate, the court considered the prejudice to the party who was not served. See id. at 638-39; see also Hawkeye Sec. Ins. Co. v. Ford Motor Co., 199 N.W.2d 373, 378 (Iowa 1972).
There is no proof that Osco suffered any prejudice as a result of Crouse's failure to direct the notice to and serve the notice upon Osco or its attorney. Accordingly, we conclude that the motion to dismiss should be denied. We therefore turn to the merits of the appeal.
IV. Statute of Limitations.
Before we address the against accrual dates of the various claims, we note that Crouse has yet to affect service of any petition upon Officer Sickels. At no time has she offered an explanation or justification for this failure. The lack of service alone warrants dismissal of the petition as to Officer Sickels. See Iowa R. Civ. P. 1.302(5) (providing that failure to serve a defendant within ninety days warrants a dismissal without prejudice, unless good cause is shown); see also DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (allowing this court to uphold the district court on any ground appearing in the record and urged below). Moreover we agree with the district court that, with the exception of the malicious prosecution claims, Crouse's claims, including any against Officer Sickels, are barred by the two-year statute of limitations in section 614.1(2).
As we previously noted, neither petition actually states a claim against Officer Sickels. However, as this issue was not presented to the district court during the August 2003 hearing, it cannot serve as a basis for affirming the district court's judgment. DeVoss, 648 N.W.2d at 63.
"The general rule is that a cause of action accrues when the aggrieved party has a right to institute and maintain a suit." Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 462 (Iowa 1984). In the case of malicious prosecution, this occurs only after termination of the prosecution by acquittal or discharge, because such a termination is one of six elements of a malicious prosecution claim that must be proven by the plaintiff. See Mills County State Bank v. Roure, 291 N.W.2d 1, 3 (Iowa 1980). In contrast, all elements necessary to bring an action for false imprisonment — unlawful detention against a person's will — were present on November 14, 2000. See Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa 2000). Crouse's detention did not, as she seems to assert, become unlawful only when she was acquitted; her detention, if unlawful, was unlawful when it occurred.
Similarly, Crouse's claims of negligence and defamation accrued when the defendants performed their last allegedly negligent or defamatory act, to Crouse's damage. See Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 400 (Iowa 1998). The only specific date alleged in Crouse's petition that relates to the defendants' actions is November 14, 2000, the date of her arrest, and during the district court hearing Crouse in fact agreed that the acts underlying all her claims occurred on November 14, 2000. While Crouse now hints that some tortious conduct occurred after this date, the summary judgment record is devoid of any disputed material facts indicating that any allegedly negligent or defamatory act occurred after the date of her arrest. See Iowa R. Civ. P. 1.981(5) (requiring a party to resist a properly supported summary judgment motion). Thus, like the false imprisonment claims, Crouse's negligence and defamation claims accrued on November 14, 2000.
The petition also alleges two Osco employees testified during Crouse's trial, which commenced on September 17, 2001. However, nothing in the record indicates the employees' testimony was in any way related to Crouse's claims of negligence or libel.
Turning to those claims that accrued on November 14, 2000 — negligence, false imprisonment, and defamation — we conclude that all but the negligence and defamation claims against Osco are time barred. No claims were asserted against the City nor Officer Sickels until February 20, 2003, when they were first named in the amended petition. This is more than two years after the claims accrued.
In contrast, Osco was named in the original petition, filed November 14, 2002. Accordingly, any claims made against Osco in that petition were timely, as were any claims in the February 20, 2003, amended petition that relate back to the time of the original filing. See Iowa R. Civ. P. 1.402(5); Rowen v. Le Mars Mut. Ins. Co., 282 N.W.2d 639, 646 (Iowa 1979). Under this standard, the negligence and defamation claims against Osco were timely filed. The false imprisonment claim — which was present in the original petition only as a caption, was not directed at any defendant, and contained no supporting allegations — was not. See Rowen, 282 N.W.2d at 646 (providing that amendment cannot be used to set out a new cause of action against which the statute of limitations has run).
However, even if the false imprisonment claim against Osco did relate back to the original filing, it, like the defamation and negligence claims, were voluntarily dismissed by Crouse. Thus, all three claims against Osco were time barred at the time the second petition was filed, some four months beyond the running of the statute of limitations, unless Crouse's second petition was a continuation of the amended petition pursuant to section 614.10.
Before we address this question we must note that, at the time the second petition was filed, the statute of limitations had yet to run on Crouse's malicious prosecution claims. As we have previously noted, and as the defendants admit, the malicious prosecution claims did not accrue until the criminal prosecution of Crouse was terminated by her acquittal, on September 19, 2001. Crouse's second petition was filed on March 11, 2003, less than two years after this date. Thus, there is no basis in the summary judgment record for the district court's dismissal of Crouse's malicious prosecution claims made against Osco and the City. That portion of the district court's order must be reversed.
V. Continuation Doctrine.
Iowa Code section 614.10 provides:
If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first.
That the failure of the former action was caused by something other than Crouse's own negligence is a fact that must be both pled and proven by Crouse. Sautter v. Interstate Power Co., 563 N.W.2d 609, 610-11 (Iowa 1997). The diligence with which she prosecuted the initial action, including every step from commencement to final termination, is a key consideration. See id. at 611.
Crouse contends she has met her burden of proof because, absent an actual determination in the initial action tantamount to a finding of negligence on her part, or at the very least a showing that she was in fact negligent, any voluntary dismissal under Iowa Rule of Civil Procedure 1.943 is a failure of the initial action caused by other than her own negligence. However, the question is not whether the defendants can show that the amended petition was dismissed due to Crouse's negligence. It is whether Crouse has demonstrated that the dismissal was not due to her negligence. The distinction is fine, but critical.
Rule 1.943 allows a party to voluntarily dismiss a petition for any reason. That reason could be wholly unrelated to the negligence of a plaintiff, or it could be an attempt by the plaintiff to avoid the consequences of her own negligence in prosecuting the action. Even though the dismissal is voluntary, it is incumbent upon a plaintiff seeking the benefit of section 614.10 to show that her dismissal falls into the former, rather than the latter, category. See Ceprley v. Incorporated Town of Paton, 120 Iowa 559, 560, 95 N.W. 179, 180 (1903).
Here, it is undisputed that Osco was not served with the original petition until ninety-two days after filing. Osco moved to dismiss the petition pursuant to Iowa Rule of Civil Procedure 1.302(5), which mandates dismissal of an action if service is not made upon the defendant within ninety days after filing, unless the plaintiff can show good cause for the failure of service. The record is devoid of any evidence from which the district court could have found good cause for Crouse's failure to timely serve Osco, thus avoiding a dismissal under rule 1.302(5). Such a dismissal would have been proof of a lack of diligence on the part of Crouse. Although this dismissal would have been without prejudice, Crouse would not have been able to re-file her case as, absent continuation under section 614.10, the claims were time-barred.
The record indicates that the cause of the voluntary dismissal was an attempt to avoid a dismissal of Crouse's petition for untimely service, which would have precluded Crouse from pursuing her claims against Osco. Crouse presents no evidence to the contrary. Accordingly, we agree with the district court that Crouse failed to meet her burden to demonstrate that the dismissal of the amended petition was due to a cause other than her own negligence. As such, the second petition was not a continuation of claims in the amended petition.
VI. Conclusion.
The district court properly determined that Crouse's claims of negligence, false imprisonment, and defamation were time-barred. The court also correctly determined that the second petition was not a continuation of the amended petition under section 614.10. However, the court erred in dismissing Crouse's malicious prosecution claims against Osco and the City, as those claims were timely filed in Crouse's second petition. Accordingly, we reverse the district court's decision to the extent it dismissed Crouse's malicious prosecution claims against Osco and the City, and remand this matter to the district court for further proceedings on those claims. The remainder of the district court's decision, dismissing Crouse's remaining claims, is affirmed.