CIVIL PROCEDURE &

CASE LAW UPDATE11/19/2021

Sarah Crane

Polk County District Court

Videoconference – here to stay?

Pros: reduces costs, saves time, generally highly

effective

Cons: reduces personal interaction, occasional

technical difficulties

Tips:

Control Feedback

Learn the Technology

Consider impact on Court Reporter and Judge

Act Professionally

General Civil Practice Tips - Procedural

Tell us whether your Motion is Un-resisted (call

opposing counsel, please).

Polk County MSJ Deadline is 90 days before Trial

Do not make substantive arguments by email

Check in if you aren’t getting a ruling

Timely file your Exhibits

Act Professionally

Change to standard summary judgment deadline in Polk County.

General Practice Tips - Substantive

Cite Authority

Just because you can file a motion doesn’t mean

you should

Respond to Statements of Undisputed Facts

Motions to reconsider should be targeted

Stop the insults in your briefing

“ad hominem: directed against a person rather

than the position they are maintaining.”

Think about how your filing looks

Toney v. Parker, 958 N.W.2d 202 (Iowa June 21, 2021)

Plaintiff resisted MSJ on deadline. Clerk of Court

rejected filing in EDMS. Plaintiff refiled the next day.

District Court struck the resistance and granted MSJ.

Reversed. District Court elevated form over substance.

Filing related back to original deadline because clerk

rejected it for minor error and deadline was not

jurisdiction. Cites to Jones v. Iowa Department of

Transportation, 887 N.W.2d 590 (Iowa 2016).

No Boundry, LLC v. Hoosman, 953 N.W.2d 696

(Iowa Jan. 22, 2021)

Longstanding policy favoring resolution of legal disputes on the merits.

Court granted default possession of home after property tax sale.

Defendant filed Motion to Set Aside Default Judgment (Rule 1.977) within weeks.

Asserted he is legally disabled and needs a guardian ad litem. District Court

denied motion.

Reversed. Longstanding policy favoring resolution of legal disputes on the

merits.

Found excusable neglect: cause of failure to timely answer, intent to defend,

whether movant asserts a meritorious defense in good faith, whether movant

ignored or willfully defied rules of procedure

Issues in Medical Malpractice

Frequently litigated: when is the statute of limitations triggered.

Kostoglanis v. Yates, (May 5, 2021), 956 N.W.2d 157 (Iowa Mar. 12,

2021)

Plaintiff had surgery. Concerns about postoperative wound care

within days. Three years later filed suit alleging negligent

misrepresentation, fraudulent misrepresentation, and breach of

contract.

All claims are predicated on injuries “arising out of” patient care

and, therefore, subject to the two-year statute of limitations in

Iowa Code 614.1(9)

Distinguished claim for sexual assault in Doe v. Cherwitz, 894 F.

Supp. 344 (S.D. Iowa 1995). Those claims did not “arise out of”

patient care.

Issues in Medical Malpractice

Watch expert deadlines.

Iowa Code 147.140: Personal injury or wrongful death against health care

provider. “Certificate of merit affidavit” signed by an expert witness. WITHIN

60 DAYS OF DEFENDANT’S ANSWER.

Iowa Code 668.11 (180 days of defendant’s answer in professional liability cases).

Rider v. Segal, 959 N.W.2d 423 (Iowa May 14, 2021)

Plaintiff brought claims relating to problems from surgery. Doctor had been

investigated by Board.

Court declines to answer whether negligent credentialing is a tort in Iowa.

District Court granted MSJ.

Reversed. Court finds expert reliance on prior lawsuits against the Doctor for

purpose of negligent credentialing was appropriate. Distinguishes use of prior

lawsuits to show propensity as compared with use to show knowledge of

employer.

NCJC, Inc. v. WMG, Inc., 960 N.W.2d 58

(Iowa May 28, 2021)

Impact of offer to confess judgment on contractual fee shifting.

Contract dispute. Defendant offered to confess judgment for $75,000.

Plaintiff prevailed at trial and was awarded $41,453.57.

Contract had a fee-shifting provision for “prevailing party.” Plaintiff was

prevailing party: received money judgment, even though less than

demanded.

BUT, “prevailing party” fees pursuant to contract are “costs” for

purposes of determining the effect of an offer to confess judgment.

Iowa Code 625.22: fees recovered on written contract are taxed as costs

Iowa Code 677.10: plaintiff cannot recover costs from time of offer

Godfrey v. State of Iowa, 962 N.W.2d 84 (Iowa June 31, 2021)

Work Comp Commissioner Godfrey refused to resign, Gov.

Branstad reduced his pay, Godfrey sued for sexual-orientation

discrimination.

Court grants Judgment as a Matter of Law: insufficient

evidence that decision-maker (Gov. Branstad) had knowledge

of Godfrey’s sexual orientation.

Critical of evidentiary rulings, although not the basis of the

opinion.

Admission of testimony regarding position of Republican

Party as “anti-gay.” Not tied to defendant or Godfrey’s

employment.

Exclusion of evidence relating to Godfrey’s prior mental

health despite claim for emotional distress damages.

Lukken v. Fleischer, 962 N.W.2d 71(Iowa June 30, 2021)

Zip-line case. Employee failed to reset braking system.

Lukken crashed into wooden pole, suffered neck fracture.

Lukken had signed liability waiver.

Lukken sued zip-line designer. Designer dismissed because

owner had replaced designer’s original braking system.

Lukken also sued owner. Did waiver of liability bar claims?

Waiver does bar negligence claim.

Waiver does not bar claims for willful, wanton, or reckless

conduct – against public policy

Rumsey v. Woodgrain Millwork, Inc., 962 N.W.2d 9

(Iowa June 25, 2021)

Plaintiff injured at work. Offered and accepted light-duty work. Dispute arose

regarding specific work restriction (request for sit-down work) and employee

was fired, allegedly for insubordination.

3 claims: disability discrimination, failure to accommodate, retaliation

Court grants judgment notwithstanding the verdict on disability discrimination

because Plaintiff did not identify any job he could perform other than the

temporary light-duty work.

Failure to accommodate and retaliation claims could proceed relating to

request for sign language interpreter, but not relating to request for sit down

work. Verdict form did not differentiate between the two theories.

Therefore, reversed for retrial on these two claims on the interpreter theory.

Dix v. Casey’s General Stores, Inc., 961 N.W.2d 671

(Iowa 2021)

Employers who want to implement suspicionless drug testing must

follow detailed and comprehensive statutory scheme or face civil

liability.

Standard is “substantial compliance.”

Immunity provision applies to other independent causes of action,

not the private right of action in this statute.

Employer improperly classified employees as safety-sensitive

position. Awarded back pay to both employees and front pay to one.

Found Casey’s substantially complied where it relied on list of drugs

provided in announcement of policy since this was the first test, but

cautioned employers to provide a list with each testing.

Woods v. Charles Gabus Ford, Inc., 962 N.W.2d 1 (June 25, 2021)

Employee terminated after testing positive for meth.

Drug testing statute contains specific requirements for

notification of a positive test result.

Letter failed to include the fee and did not substantially comply.

Letter was not sent return receipt requested as required. Woods

did receive the notice. Therefore, substantially complied.

Remedy: No way to determine whether a retest would have

confirmed positive result. Remanded for determination of

whether back pay and/or front pay is appropriate.

Public Duty Doctrine Evolution

In 2018, Iowa Supreme Court seemed to re-invigorate public duty

doctrine. Johnson v. Humboldt County, 913 N.W.2d 256 (Iowa 2018).

Driver hit concrete embankment constructed by private landowner in

ditch.

“If a duty is owed to the public generally, there is no liability to an

individual member of that group.”

No special relationship, notes distinction between malfeasance/

nonfeasance.

In 2020, Breese v. City of Burlington, 945 N.W.2d 12 (Iowa 2020)

Bike rider fell 10 feet from sewer box that appeared to be part of

trail system.

Distinguished doctrine because City built, owned, operated, and

controlled the bike trail and sewer box. Connecting sewer box to path

could be considered affirmatively negligent.

Noted “gray area” in malfeasance/nonfeasance distinction.

Fulps v. City of Urbandale, 956 N.W.2d 469

(Iowa Mar. 19, 2021)

Clarifies the scope and purpose of the public duty doctrine.

Plaintiff fell on a sidewalk in Urbandale, broke her arm and wrist, alleged

sidewalk was uneven, damaged, and improperly maintained.

District Court (me) granted motion to dismiss based on language in Johnson

regarding duty to all.

Reversed. Clarifies that public duty doctrine comes into play “when a

governmental entity fails to take action (nonfeasance) with respect to a

third party – typically by failing to exercise statutory authority with respect

to the third party’s activity.”

Example: failing to enforce criminal or regulatory laws

City still on the hook for own failure to properly construct or maintain

Nonfeasance doesn’t mean doesn’t mean City can fail to maintain

City liable to the same extent a private property owner would be

Domenico Calcaterra v. Iowa Board of Medicine, No.

20-1429, 2021 WL 4929215(Oct. 22, 2021)

Iowa Code 272C.6(4)(a):

Licensing board’s “investigative information” shall be “privileged

and confidential.”

Contains some exceptions for disclosure, including final written

decision and finding of fact.

Doctor settled disciplinary matter, yet allegations from

statement of charges and press release remained publicly

accessible.

Court finds Board not allowed to publish that information.

Fact that it and other licensing boards had promulgated

contrary rules was not persuasive. Rules cannot override clear

statutory language.

Guge v. Kassel Enterprises, Inc., 962 N.W.2d 764

(Iowa June 18, 2021).

Minority shareholder sues for oppression. Majority shareholder has

statutory right to elect to buy out the minority shareholder for “fair

value.”

Experts agreed on net asset value approach (assets minus liabilities).

Entity’s value mainly in farmland.

Specific provision doesn’t define fair value but it is defined within same

chapter. Issue was whether adjustments or discounts should be applied.

Transaction costs. Both experts included discount for transaction costs of

hypothetical liquidation. District Court refused. Reversed. Doesn’t really

answer if they always apply.

Built-in capital gains taxes. This was an S Corp, not a C Corp. Taxes flow

through to shareholder level not entity level. Minority shareholders will pay

their own tax liability for selling their stock. Plus, no sale of assets was

actually contemplated.

Concurrence by Justices Oxley and McDonald noting the net asset value

approach assumes sale of assets.