IN THE COURT OF APPEALS OF IOWA
No. 1-563 / 00-1868
Filed December 12, 2001
CLIFTON RODENBURG and DONNA RODENBURG,
Appeal from the Iowa District Court for Dallas County, Dale B. Hagen,
Plaintiffs appeals from a district court order dismissing their
negligence action against defendant based on a finding the action was
brought following the expiration of the applicable statute of limitations.
Clifton Rodenburg and Donna Rodenburg, Fargo, North Dakota, pro se.
Jonathan M. Kimple, Dallas Center, for appellee Mark Lathrop.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
William Hart shot Clifton Rodenburg in 1996. More than four years
later, Clifton and his wife, Donna filed suit in Iowa against defendants
Mark Lathrop, Amelia Oponski, and Patrick Parker for personal injuries
suffered in the shooting. The defendants responded by contending the action
was precluded by the applicable statute of limitations. The district court
agreed and dismissed the lawsuit. The Rodenburgs appealed. They have
dismissed their appeal against Oponski and Parker, but continue to contend
the district court erred in concluding the statute of limitations barred
their suit against Lathrop. We affirm.
Background Facts and Proceedings
William Hart shot Clifton Rodenburg on March 26, 1996, in Fargo, North
Dakota. Prior to the shooting, Mark Lathrop, and his girlfriend, Amelia
Oponski, bailed Hart out of jail in Des Moines, Iowa. Hart told them that
if he was released from jail, he could repay money he owed them as the
result of an unsuccessful business deal. Hart assured Lathrop he could
obtain a large sum of money from some acquaintances in North Dakota who
were indebted to him. Lathrop and Oponski agreed to accompany Hart to
Before leaving Iowa, Lathrop, Oponski, and Hart went to the home of
Patrick Parker to borrow a handgun and a box of ammunition ostensibly to
protect them while returning to Iowa with a large sum of money. The
handgun was later used by Hart to shoot Clifton Rodenburg.
On March 9, 1996, Hart, Lathrop, and Oponski traveled to North Dakota.
Hart was unsuccessful in securing any money and they returned to Des
Moines. Sometime around March 16, 1996, Hart, Lathrop, and Oponski again
traveled to North Dakota. This venture also proved unproductive and the
trio returned to Iowa. Because they planned to return to North Dakota,
they did not check out of the hotel room Hart rented when they arrived in
Fargo. Lathrop left the handgun belonging to Parker in a bag in the rented
room. Approximately ten days later, Hart made a third trip to Fargo
without Lathrop and Oponski. On this trip, Hart shot Rodenburg several
times at the YMCA in Fargo with Parker's handgun. Rodenburg survived the
shooting, but was seriously injured.
During the criminal investigation of Hart's actions, Lathrop and
Oponski told law enforcement officials Hart had stolen Parker's handgun
from the basement of their home. Hart was charged with a number of federal
criminal offenses as a result of the shooting. At his criminal trial,
Lathrop and Oponski admitted they had lied to investigators about how Hart
acquired the gun and ammunition. Their recantation occurred on or about
August 4, 1998.
In January of 1999, Rodenberg and his wife brought an action in North
Dakota against the YMCA, Hart, Lathrop, Oponski, and Parker seeking
personal injury damages as a result of the shooting. Following trial, a
jury apportioned 100% of the fault to William Hart.
On August 3, 2000, Clifton Rodenburg, joined by his wife, filed a
negligence action in Dallas County, Iowa. The petition named Mark Lathrop,
Amelia Oponski, and Patrick Parker as defendants. Specifically, the
petition alleged the defendants were negligent in the following
particulars: (a) securing Hart's release from incarceration; (b) providing
the handgun and bullets to Hart; (c) providing transportation for Hart's
trips to North Dakota; (d) providing money for Hart's trips to North
Dakota; and (e) failing to warn Rodenburg or law enforcement authorities of
Hart's intentions and actions.
Parker and Lathrop moved to dismiss the Rodenburgs' negligence claim
asserting the action was beyond the scope of the applicable statute of
limitations. Oponski raised the same issue as an affirmative defense in
her answer to the plaintiffs' petition. By agreement, the district court
treated Oponski's answer as the equivalent of a motion to dismiss.
Following hearing, the court concluded the Rodenburgs' petition failed to
state a claim upon which relief could be granted because it was filed after
the expiration of the statute of limitations established in Iowa Code
The Rodenbergs appealed contending first, that the discovery rule
should apply to section 614.1(2) and toll the statute of limitations; and
second, that the statute of limitations should be tolled according to the
doctrine of fraudulent concealment.
The Rodenburgs have voluntarily dismissed their appeals against
defendants Patrick Parker and Amelia Oponski. Therefore, the only issue on
appeal concerns the timeliness of their negligence action against the
remaining defendant, Mark Lathrop.
II. Scope of Review
Our review of a district court's ruling on a motion to dismiss is for
correction of errors at law. Iowa R. App. P. 4; Henry v. Shober, 566
N.W.2d 190, 191 (Iowa 1997). A district court's order sustaining or
overruling a motion to dismiss does not depend on the court's discretion.
Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994). The ruling must rest on
legal grounds and is subject to review by us. Id. (citing Weber v.
Madison, 251 N.W.2d 523, 525 (Iowa 1977)). The district court's findings
of fact are binding on appeal unless not supported by substantial evidence.
McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). We are not bound by
the district court's application of legal principles or its conclusions of
Statutes of limitations are legislatively prescribed restrictions on
the time period in which a plaintiff may initiate a particular cause of
action. The underlying purpose of Iowa Code section 614.1(2), like any
other statute of limitations, is well established:
Statutes of limitations are primarily designed to assure
fairness to defendants. Such statutes "promote justice by preventing
surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and
witnesses have disappeared." Moreover, the courts ought to be relieved
of the burden of trying stale claims when a plaintiff has slept on his
Wetter v. Dubuque Aerie No. 568 of the Fraternal Order of Eagles, 588
N.W.2d 130, 132 (Iowa Ct. App. 1998) (citations omitted).
The applicable statue of limitations is determined by the nature of
the cause of action, which is in turn determined by the rights sued upon.
Venard, 524 N.W.2d at 165 (Iowa 1994) (citing Sandbulte v. Farm Bureau Mut.
Ins. Co., 343 N.W.2d 457, 462 (Iowa 1984)). The Rodenbergs' claims against
defendant Lathrop seek damages for personal injuries and spousal consortium
suffered as a result of the defendant's alleged negligence. Therefore, the
plaintiffs' action for personal injury is restricted by the time limits set
forth in Iowa Code section 614.1(2). This section provides:
Actions may be brought within the times herein limited, respectively,
after their causes accrue, and not afterwards, except when otherwise
specifically declared. . .
2. Injuries to person or reputation - relative rights - statute
penalty. Those founded on injuries to the person or
reputation, including injuries to relative rights, whether
based on contract or tort. . . within two years.
Iowa Code § 614.1.
The Rodenbergs assert this two year statute of limitations did not
begin to run on March 26, 1996, the date of the injury for which they seek
redress. Instead, they claim the statute should be tolled until August 4,
1998. They contend this is the earliest date on which they could have
discovered they had a cause of action against Mark Lathrop. If the statue
was tolled until August 4, 1998, as the Rodenbergs contend, then the Iowa
negligence action filed on August 3, 2000 would fall within the two-year
statute of limitations even though it was filed more that four years after
Clifton Rodenburg was injured.
To the extent that the Rodenburgs attempt to establish a factual and
legal basis for being excused from timely filing, they must shoulder the
burden of proving such an exception. See Frazen v. Deere & Co., 334 N.W.2d
730, 732 (Iowa 1983).
Application of the Discovery Rule
The Rodenbergs initially claim the district court erred in failing to
recognize that the two-year statute of limitations for personal injury
actions under Iowa Code section 614.1(2) is subject to the discovery rule.
The common law discovery rule provides the statute of limitations does not
begin to run until the plaintiff knows, or in the exercise of reasonable
care should know, both the facts of the injury and the nexus between the
injury and the alleged negligence. Borchard v. Anderson, 542 N.W.2d 247,
250 (Iowa 1996). While fairness to the plaintiff provides justification
for the discovery rule, we have held that fairness to a defendant must
temper the application of this rule. Woodroffe v. Hasenclever, 540 N.W.2d
45, 49 (Iowa 1995) (quoting LeBeau v. Dimig, 446 N.W.2d 800, 802-03 (Iowa
1989)). The law favors the application of one statute of limitations for
actions based on a particular incident. LeBeau v. Dimig, 446 N.W.2d 800,
802 (Iowa 1989).
Courts have been reluctant to adopt a broad application of the
discovery rule for fear that creating "rolling statute of limitations"
would effectively obliterate the intended protection of legislatively
established time limits. While recognizing the wisdom of its application
under certain circumstances such as professional malpractice, workers
compensation, and injuries resulting from sexual abuse, courts have been
quick to point out that these are exceptions to the general rule. See
Bochard, 542 N.W.2d at 251.
Even if we assume, for purposes of the Rodenbergs' appeal, that the
discovery rule could be used to toll the statute of limitations in a
general personal injury action, their claim would nonetheless be time
barred. The statute of limitations begins to run when an action "accrues,"
that is when all of the elements are known, or in the exercise of
reasonable care should have been known to the plaintiff. See Frazen 377
N.W.2d at 662.
We recognize that situations may arise when a person suffers an
injury, but is oblivious to significant facts surrounding the event. The
array of potentially responsible parties may be open to question until
certain facts are revealed. The time period for discovering new pertinent
facts is quite possibly limitless. This situation has been resolved by
tolling the statute of limitations based on the discovery rule until the
time when a plaintiff may reasonably be charged with knowledge of facts
sufficient to trigger awareness of a cause of action against a particular
defendant. Vachon v. State, 514 N.W.2d 442, 446 (Iowa 1994). Knowledge is
imputed to a claimant when he gains information sufficient to alert a
reasonable person of the need to investigate. Ranney v. Parawax Co., 582
N.W.2d 152, 155 (Iowa 1998) (citations omitted). As of that date, we have
found that a plaintiff is on inquiry notice of all facts that would have
been disclosed by a reasonably diligent investigation. Id. (citations
Challenged to maintain a balance between the competing interests
supporting the discovery rule and the statute of limitations, our supreme
court has stated:
The underlying purpose of the discovery rule is that a statute of
limitations should not bar the remedies of claimants who have been
excusably unaware of their rights to sue. Such purpose would be
thwarted if we allowed claimants to ignore the statute of limitations
when it becomes obvious they have an actionable claim based on one or
more theories of action, and then later permit them to sue when
additional facts are uncovered supporting additional theories. We
therefore hold that once claimants have knowledge of facts supporting
an actionable claim they have no more than the applicable period of
limitations to discover all the theories of action they may wish to
pursue in support of that claim.
Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 352 (Iowa 1987) (citations
In this case, the Rodenburgs' petition alleges one count of negligence
against Lathrop. Contained within this single count, are five separate
acts the Rodenburgs contend amount to breaches of the duty of reasonable
care owed to them by the defendant. The petition alleges breach in that
the defendant: (a) secured Hart's release from incarceration; (b) provided
the handgun and bullets to Hart; (c) provided transportation for Hart's
trips to North Dakota; (d) provided money for Hart's trips to North Dakota;
and (e) failed to warn Rodenberg or law enforcement authorities of Hart's
intentions and actions. Only one of the five alleged breaches has any
connection to information withheld from the Rodenbergs regarding Parker's
Based on information untainted by Lathrop's misrepresentations about
how Hart obtained the gun, the Rodenburgs' negligence action against the
defendant became ripe no later than 1997. As the district court noted, the
record reveals Clifton Rodenburg began his own investigation of the facts
surrounding the shooting as early as March 15, 1997. At that time,
Rodenburg initiated conversations with Patrick Parker, Amelia Oponski, and
Mark Lathrop. He questioned them about their involvement with Hart, and
When he commenced his investigation, Clifton Rodenburg was already
aware he had been shot by William Hart, a convicted criminal. His
investigation in 1997 revealed there was a relationship between Hart,
Lathrop, and Oponski. He confirmed the handgun used in the shooting
belonged to Parker and was loaned to Lathrop. He was aware that Parker
knew Hart had a history of trouble with law enforcement. Finally, he had
knowledge that Lathrop and Oponski bailed Hart out of jail using Oponski's
house as collateral. At the least, Rodenburg's knowledge of these facts
was sufficient to place him and his wife on inquiry notice for purposes of
the discovery rule and the calculation of time for the statute of
limitations. We conclude the district court correctly ruled the
Rodenburgs' negligence action initiated on August 3, 2000 is time barred.
Personal injury plaintiffs are frequently confronted with a situation
in which the statute of limitations period begins to run before the
specifics of negligence and the full depth of the injuries are known.
Plaintiffs must nonetheless initiate the action within the limitations
period, and the problem of acquiring later knowledge is dealt with through
procedural mechanisms. Woodroffe, 540 N.W.2d at 48. In this case,
plaintiffs could have filed their negligence action alleging four breaches
of duty, and then later amended the petition to include a fifth when the
truth was revealed about how Hart obtained the weapon. See Pease v. Zazza,
295 N.W.2d 43, 49 (Iowa 1980).
The Rodenburgs also claim the statute of limitation should be tolled
based on a theory of fraudulent concealment. The root of this argument
lies in the misrepresentations made by the defendant, Mark Lathrop, to
federal investigators and Clifton Rodenburg personally, about how Hart
obtained the gun used in the shooting. Fearing any association with Hart
or the shooting, Lathrop lied to investigators by telling them that Hart
had stolen the gun from his basement. Lathrop maintained this version of
the events until he was slated to testify at Hart's criminal trial. Then,
sometime between August 4, 1998 and August 17, 1998, the Rodenburgs learned
that Lathrop was going to recant his original story. He would admit that
he inadvertently left the gun and ammunition in the North Dakota hotel room
where the parties were staying. Based on Lathrop's misrepresentation of
the facts leading up to shooting, the Rodenburgs claim they were prevented
from discovering their cause of action against the defendant. They argue
that the statue of limitations should be tolled until August 4, 1998, when
Lathrop revealed the truth.
Iowa case law recognizes that the statute of limitations should be
tolled when a claim is fraudulently concealed from the plaintiff. Brown v.
Public Employment Relations Bd., 345 N.W.2d 88, 96 (Iowa 1984) (citations
omitted). Iowa Code section 614.1(2) is subject to the same exception.
Like a plaintiff claiming protection under the aforementioned discovery
rule, a plaintiff relying on the extraordinary circumstance of fraudulent
concealment must prove the facts which the exception requires. To prove
fraudulent concealment, a plaintiff must show: (1) that the defendant
engaged in some affirmative act to conceal the cause of action from the
plaintiff; and (2) that the plaintiff exercised reasonable diligence to
discover the cause of action. Pride v. Peterson, 173 N.W.2d 549, 555 (Iowa
1970) (citations omitted). Consequently, the Rodenburgs' complaint will be
deemed timely if they can prove that Lathrop's misrepresentation regarding
how Hart obtained the gun concealed the entire negligence action until
August 4, 1998, notwithstanding their due diligence to discover the facts
on which they based their complaint.
The Rodenburgs are unable to provide this proof. Their negligence
action against the defendant delineates five separate breaches of duty.
Only one of the five was even arguably affected by the misrepresentations
of the defendant. The remaining four alleged breaches were ripe for action
no later than 1997. Therefore, we conclude the negligence action brought
against Lathrop, alleging five separate breaches of duty, was not affected
by fraudulent concealment. The general two-year statute of limitations
under Iowa Code section 614.1(2) should apply and bar the Rodenbergs'
claim. The district court properly found that the plaintiffs' action
should be dismissed because it was initiated after the statute of