Opinion
No. 5-034 / 04-0973
Filed May 11, 2005
Appeal from the Iowa District Court for Polk County, Robert Wilson (motion to dismiss) and Don Nickerson (nunc pro tunc and summary judgment), Judges.
Plaintiff-appellant Richard Dickens appeals from a ruling denying his request for an order nunc pro tunc and sustaining defendants' motion for summary judgment. AFFIRMED.
Christopher Kragnes, Sr. of Kragnes, Tingle Koenig, P.C., Des Moines, for appellant.
Barry G. Vermeer and Loree A. Nelson of Gislason Hunter, LLP, Des Moines, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Plaintiff-appellant Richard Dickens, individually and as executor of the estate of Sharon Kenyon, appeals from a ruling denying his request for an order nunc pro tunc and sustaining defendants' motion for summary judgment dismissing his medical malpractice case alleging defendants were responsible for the death of his wife. We affirm.
I. Background Facts and Proceedings.
On August 14, 2002, plaintiff filed a petition alleging the negligence of Dr. John Jabour and Nurse Anesthetist Rebecca Meyer was a proximate cause of the death of his wife. The petition also named Associated Anesthesiologists, P.C. (Associated), the employer of Jabour and Meyer, as defendant.
Associated was served an original notice and filed a timely answer to the petition. Neither Jabour nor Meyer was served with an original notice of the suit and they filed a motion to dismiss. The motion was sustained and the case against them was dismissed "with prejudice" on February 21, 2003.
Associated filed a motion for summary judgment on July 15, 2003, contending: (1) Jabour and Meyer were dismissed with prejudice, (2) their dismissal served as an adjudication on the merits such that Jabour and Meyer were not liable to Dickens, and (3) because the liability of Associated's agents, Jabour and Meyer, was extinguished by the dismissal, Associated's liability was likewise extinguished.
Dickens resisted the motion for summary judgment and filed a motion for an order nunc pro tunc on December 9, 2003, contending the dismissal of Jabour and Meyer for failure to effectuate timely service pursuant to Iowa Rule of Civil Procedure 1.302(6) (2002) could only be granted "without prejudice," and the February 21, 2003, dismissal therefore contained an evident mistake which should be corrected through an order nunc pro tunc.
After a hearing the district court granted Associated's motion for summary judgment and denied Dickens' motion for an order nunc pro tunc. The court reasoned that nunc pro tunc orders are a viable means of correcting clerical errors, but they should not be employed to "alter judicial conclusions." Moreover, the court was hesitant to exercise its discretion to revise the dismissal order entered some nine months earlier even if the phrase "with prejudice" was not intended.
Dickens claims the district court erred in (1) granting summary judgment in favor of Associated, and (2) denying his motion for order nunc pro tunc.
We first address plaintiff's claim that his request for a nunc pro tunc order should have been granted.
We review the denial of a motion for order nunc pro tunc for correction of errors at law. Freeman v. Ernst Young, 541 N.W.2d 890, 893 (Iowa 1995); Papenheim v. Lowell, 530 N.W.2d 668, 671 (Iowa 1995).
What appellant is asking for through a nunc pro tunc order is to correct an error at law made by the district court in dismissing the matter with prejudice because the appellant argues the dismissal was not in accord with Iowa Rule of Civil Procedure 1.302(6) (2002).
An order nunc pro tunc is used to correct clerical errors. Iowa v. Naeyoks, 637 N.W.2d 101, 103 (Iowa 2001). An error is clerical if it is not the product of judicial reasoning and determination. Iowa v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). A nunc pro tunc order is not for the purpose of correcting judicial thinking, a judicial conclusion, or a mistake of law. State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2001); Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969). It can be used only to correct obvious errors or to make an order conform to the judge's original intent. Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 229 (Iowa 1987). If a court intends to correct an error of fact or law in arriving at its judgment, the appropriate remedy would not be by way of a nunc pro tunc order, but by way of other available procedures such as a motion under Iowa Rule of Civil Procedure 1.904(2) or a motion for new trial. Id.; see McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 151 (Iowa 1980).
The district court was correct in denying the application for a nunc pro tunc order. We affirm on this issue.
We next address the question of whether the district court correctly granted summary judgment in favor of Associated on the theory that the dismissal of Jabour and Meyer extinguished Associated's liability to Dickens.
We review the grant of a summary judgment motion for correction of errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001). "Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact, and in deciding that issue, we review the record in the light most favorable to the party opposing the motion." Campbell v. Delbridge, 670 N.W.2d 108, 109 (Iowa 2003).
Where an employee/agent is found not to be liable, a vicarious liability claim may not be maintained against his employer/principal under respondeat superior theory. Estate of Bruce v. B.C.D., 396 F. Supp. 157, 160 (S.D. Iowa 1975). Dismissal of Jabour and Meyer operated as an adjudication on the merits. Becker v. Becker, 603 N.W.2d 627, 628 (Iowa 1999); Iowa R. Civ. P. 1.946. We affirm the dismissal.
AFFIRMED.
Zimmer, J. concurs; Hecht, J. dissents.
I respectfully dissent. An order nunc pro tunc is calculated to align the written order of a district court with the intended order of the district court, so that evident clerical errors in the physical representation of the court's judgment do not become the law of the case. McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 150 (Iowa 1980); see also Feddersen v. Feddersen, 271 N.W.2d 717, 719 (Iowa 1978) (concluding that where errors appear in the court's recorded decision, the order nunc pro tunc will only correct those errors which can be considered "evident mistakes").
The district court noted its reluctance in this case to grant relief because of the delay between the ruling on the motion to dismiss and Dickens' motion for an order nunc pro tunc. There is some precedent suggesting the timeliness of such requests for relief is a relevant factor. "[T]he more time that passes, the more evident and manifest the alleged error must be before a nunc pro tunc entry is proper." McVay, 287 N.W.2d at 151. In Headley v. Headley, 172 N.W.2d 104 (Iowa 1969), our supreme court found nunc pro tunc relief appropriate in spite of the fact that a party waited eight months to request such relief. Headley, 172 N.W.2d at 107 (finding ample authority to order remand even after the sixty day statutory period for the correction of orders, as provided in Iowa Code section 604.41 (1967), had lapsed, where objective was to correct an evident mistake). Although Dickens waited a bit longer to seek nunc pro tunc relief, Associated fails to indicate with any specificity the prejudice it suffered from the delay. I would therefore reject the notion that Dickens' motion for order nunc pro tunc was properly overruled in this case because of Dickens' delay in bringing the error to the attention of the court.
The challenged dismissal order is inconsistent with the type of dismissal authorized in rule 1.302(6) for failure to timely serve a defendant. In this context rule 1.302(6) directs the district court to dismiss without prejudice or failing that, to designate an alternate means of or time for service of the required original notice. The circumstances of this case in many ways mirror the factual circumstances in Headley. There, the challenged court order in a dissolution case commanded the husband to pay the wife alimony until his death or remarriage. Headley, 172 N.W.2d at 106. Because the obligation to pay alimony is typically conditioned on the recipient's death or remarriage, the result produced by the district court order was "so unusual as to be startling," and clearly the result of a mistake. Id. Our supreme court considered the error "evident" and reversed the district court's refusal to grant the nunc pro tunc order even though the error was not discovered for some eight months after the challenged order was entered. Id. at 109. The dismissal with prejudice granted in this case is no less startling or unusual than the order setting alimony to terminate on the remarriage of the obligor appealed from in Headley. Unlike Headley, where the apparent "mistake" was arguably within the discretion of the district court to make, here the applicable rule of procedure granted the district court no discretion to dismiss "with prejudice" for untimely service of process.
I believe the mistake within the dismissal order that is the subject of this appeal could have been and likely was precisely the type of evident clerical mistake a nunc pro tunc order is specifically designed to ameliorate. However, on this record one can only speculate whether the district court intended to dismiss Jabour and Meyer "with prejudice." If the court did intend to dismiss them with prejudice, the resulting order was a mistake of law irremediable by order nunc pro tunc. Id. at 108. If the district court did not intend the dismissal to operate with prejudice, but the order's language nonetheless so provided as a result of a clerical error, I believe the order nunc pro tunc should have been granted to effect the requested change to the order. I would therefore reverse the district court's refusal to grant the order nunc pro tunc and remand for further proceedings. Evidence of the district court's intention in connection with the dismissal should be received and the motion for nunc pro tunc should be reconsidered in light of that evidence. See Headley, 172 N.W.2d at 109 (noting abundant authority for a remand to determine the district court's intent.)
While not dispositive as to Judge Wilson's intention with regard to the type of dismissal his order contemplated, the motion to dismiss filed by Jabour and Meyer requested a dismissal with prejudice — relief not authorized by the clear language of Iowa R. Civ. P. 1.302(6). Attorneys often prepare motions with proposed orders for the district court's consideration. It has been held that a mistake by an attorney drafting an order for signature by the court is precisely the type of "clerical error" that nunc pro tunc orders are designed to correct. State v. Harbour, 240 Iowa 705, 712, 37 N.W.2d 290, 294 (Iowa 1949). On this limited record, however, I am unable to determine if the attorney for Jabour and Meyer prepared the errant dismissal order. However, the replication of the mistake in both the motion to dismiss and the order is suggestive enough of a "clerical error" as opposed to a "mistake of law" that I would reverse and remand the nunc pro tunc issue for a determination of whether Judge Wilson intended to dismiss "with prejudice" contrary to the express language of rule 1.302(6).
I also dissent from the majority's determination that the district court correctly granted summary judgment in favor of Associated on the theory that the dismissal of Jabour and Meyer extinguished Associated's liability to Dickens. It is true that where an employee/agent is found not liable, a vicarious liability claim may not be maintained against his employer/principal under respondeat superior theory. In re Estate of Bruce v. B.C.D., 396 F. Supp. 157, 160 (S.D. Iowa 1975). In the case before this court, however, the prevailing law did not authorize the district court to dismiss Jabour and Meyer with prejudice. Accordingly, the dismissal of Jabour and Meyer under the circumstances did not effectuate an adjudication of their liability as a matter of law. The contrary conclusion reached by the district court and a majority of this panel of the Court of Appeals was apparently based on the language of Iowa Rule of Civil Procedure 1.946, and the holding in Becker v. Becker, 603 N.W.2d 627 (Iowa 1999). In Becker, the district court dismissed an action for "abusive delay of process" as a consequence of the plaintiff's failure to serve the defendant until 171 days after the petition was filed. Becker, 603 N.W.2d at 628. When Becker was decided, Iowa law did not mandate a specific deadline for the service of process. Rather, under the prevailing law of that case, process was considered presumptively abusive where plaintiff failed to serve process within 120 days after the petition was filed. Id. at 627; Alvarez v. Meadow Lane Mall Ltd. P'ship, 560 N.W.2d 588, 591 (Iowa 1997). The Becker court noted that former Iowa Rule of Civil Procedure 49 (1999) did not prescribe the effect of a dismissal for abusive service, and concluded that because the dismissal in that case did not fit within one of the three stated exceptions to former rule 217's "effect of dismissal" language, the dismissal constituted an adjudication on the merits. Becker, 603 N.W.2d at 627.
Former rule 217 (now rule 1.946) provided dismissals "shall operate as adjudications on the merits unless they specify otherwise" except in three circumstances: (1) voluntary dismissal under former rule 215 (now rule 1.943), (2) improper venue, and (3) lack of jurisdiction. The plaintiff in Becker contended the dismissal in that case for failure to effectuate timely service was tantamount to a dismissal for lack of personal jurisdiction over the defendant not served. Becker, 603 N.W.2d at 628. Our supreme court rejected that argument, however, concluding "[t]he original dismissal was grounded solely on abuse of process, not on a finding relating to jurisdiction." Id.; but see McKim v. Petty, 242 Iowa 599, 604, 45 N.W.2d 157, 159 (1950) (finding that personal jurisdiction over a person is acquired by service of process upon the defendant as required by law).
Effective January 24, 1998, former rule 49(f) was amended to include a ninety-day deadline for the service of process. Effective February 15, 2002, former rule 49 was renumbered as rule 1.302, and the ninety-day deadline was moved to rule 1.302(6). Under the amended rule, dismissal for failure to effectuate timely service shall be "without prejudice as to that defendant" not timely served. In McKim v. Petty, 242 Iowa 599, 604, 45 N.W.2d 157, 159 (1950), our supreme court held a district court's personal jurisdiction over a person is acquired by service of process upon the defendant. By definition, a court lacking personal jurisdiction over a defendant is devoid of authority to adjudicate matters concerning that defendant. Rule 1.946 espouses this rule by excepting dismissals for lack of jurisdiction from operating as adjudications on the merits. The "without prejudice" dismissal presently mandated by the amended rule merely aligns the holding in McKim with rule 1.946's clear indication that dismissals for lack of jurisdiction do not adjudicate the merits of a particular cause of action. As the prevailing law did not dictate that the dismissal of Jabour and Meyer operated as an adjudication on the merits of their liability, I would set aside the summary judgment court pending further proceedings on the motion for order nunc pro tunc.
Rule 1.302(6) has since been again renumbered as rule 1.302(5) without substantive change.
Rule 1.302(6) also gives the district court discretion to "direct an alternate time or manner of service" in lieu of dismissal.
I would further conclude that Associated's liability in this case is not contingent upon the district court's remand decision on the nunc pro tunc issue. It is well established that Jabour and Meyer are not "necessary parties," and they therefore need not be joined as defendants by Dickens in order to maintain the action against Associated. See, e.g., Graham v. Worthington, 259 Iowa 845, 865-67, 146 N.W.2d 626, 640-41 (1966) (noting that at common law the master and servant may each and both be liable for a servant's tort committed in the course of employment; the right of an injured party to sue and hold the employer liable is a direct or primary right); Wiedenfeld v. Chicago North Western Transp. Co., 252 N.W.2d 691, 695 (Iowa 1977) (stating "[t]he servant is not a necessary party to an action against the master"; plaintiff's failure to sue certain railroad employees did not immunize the railroad from liability for their negligence, or other employees' negligence, if properly pled and proven).
Thus I would reverse the ruling of the district court granting summary judgment in favor of Associated and remand this case to the district court for further proceedings.