BRIDGET MARIE ROCHEFORD KEARNEY a/k/a BRIDGE MARIE BARLOON ROCHEFORD, Plaintiff - Appellee, vs. MARC I A A. PITTMAN, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-615 / 07-2032
Filed October 29, 2008
BRIDGET MARIE ROCHEFORD KEARNEY
a/k/a BRIDGE MARIE BARLOON ROCHEFORD,
Plaintiff-Appellee,
vs.
MARCIA A. PITTMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Defendant appeals from the district court’s ruling finding plaintiff’s lawsuit
was not barred by issue or claim preclusion. AFFIRMED.
Eric Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Parrish, Gentry &
Fisher, L.L.P., Des Moines, for appellant.
Thomas Boyd and Ryan Crayne of Winthrop & Weinstine Law Firm,
Minneapolis, Minnesota, for appellee.
Considered by Sackett, C.J., and Miller and Potterfield, JJ.
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MILLER, J.
Defendant-appellant, Marcia Pittman, appeals from the district court’s
ruling denying her motion for summary judgment and granting plaintiff judgment
in the amount of $21,095.55 plus interest. Appellant contends the court erred in
concluding plaintiff’s action was not barred by claim preclusion. We affirm.
I.
BACKGROUND
On January 14, 1999, Donald Barloon was killed by Cynthia Zapp. Donald
died intestate and was survived by his daughter and sister, the parties to this
action. In January of 1999, Donald’s sister, Marcia Pittman, petitioned to be
appointed personal representative of Donald’s estate.
In her petition she
acknowledged that Donald had a daughter, but stated the daugher’s
whereabouts were unknown and she believed that Donald had voluntarily
terminated his parental rights so the daughter could be adopted by her
stepfather. Pittman was appointed personal representative.
In August 1999 Zapp was found guilty of involuntary manslaughter. In a
September 1999 judgment entry Zapp was ordered to pay restitution to Donald’s
estate in the amount of $150,000. Pittman was aware of the restitution award
while administering Donald’s estate, but never listed it as an asset of the estate.
In April 2000 the probate court approved the final report for the estate and
authorized Pittman to make a final distribution of the assets to herself as the sole
heir.
Pittman did so.
payments from Zapp.
In August 2000 Pittman began receiving restitution
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In June 2001, Donald’s daughter, Bridget Kearney, learned of her father’s
death while doing genealogical research on the Internet.
Kearney contacted
Pittman about the estate and eventually filed an action against her in December
of 2001 for mishandling the estate in various ways, including failing to list her as
an heir or to give her notice of the proceedings. While the suit was pending,
Pittman received substantial restitution payments, but retained them and did not
petition to reopen the estate to report the assets.
She did not disclose the
payments to her attorney or to Kearney during the litigation. In April of 2003, the
court found Pittman was negligent and breached her fiduciary duty as personal
representative for failing to use ordinary care to locate Kearney, ascertain she
had not been adopted, and give her notice of the probate proceeding. The court
ordered Pittman to pay Kearney the net value, as then known by Kearney and
the court, of the estate. The court did not find Pittman liable under theories of
conversion, negligent misrepresentation, or fraud (intentional misrepresentation).
In August 2004, after Pittman paid the amount of damages set forth in the
judgment, Kearney signed a release stating the payment “represents full
satisfaction of the judgment entered in her favor and that the judgment against
Marcia Pittman is hereby released from any further obligation.”
In 2005, while researching information about her father’s death, Kearney
learned Zapp was ordered to make restitution payments and they were disbursed
to Pittman. In August of 2005, on the State’s petition, the district court ordered
that future restitution payments be paid to Kearney.
After an unsuccessful
attempt to obtain the previously paid restitution from Pittman, Kearney filed the
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present lawsuit in November of 2006, alleging Pittman (1) was negligent in her
administration of the estate, (2) breached her fiduciary duty as personal
representative of the estate, and (3) wrongfully converted and distributed assets
of the estate to herself when they rightfully belonged to Kearney.
Pittman filed a motion for summary judgment, contending Kearney’s claim
was litigated in the previous lawsuit and thus barred by issue and claim
preclusion. The district court denied the motion as untimely. The court noted the
first “lawsuit dealt with the known assets of the estate when the final
disbursement was made.” Concerning the release Kearney signed, the court
found “that the clear language of the release pertains only to the judgment
entered in that case. The release and satisfaction has no bearing on the claim
presented in the current lawsuit.” The court also denied Kearney’s motion for
summary judgment for failure to attach a memorandum of authorities.
The lawsuit was tried to the district court in September 2007, and a ruling
followed in December. The court concluded the lawsuit was not barred by issue
or claim preclusion because the first lawsuit had sought to determine who the
rightful heir was and whether Pittman violated her fiduciary duties by failing to
locate and identify Kearney as an heir.
It concluded the current lawsuit, in
contrast, concerned the estate assets and whether Pittman wrongfully failed to
disclose an asset of Donald’s estate and retained an asset that should have been
distributed to Kearney. The court further determined Pittman was negligent and
breached her fiduciary duties as personal representative by failing to report the
restitution award as an asset during the probate proceeding and by retaining the
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payments, knowing Kearney was Barloon’s only legal heir and entitled to the
payments. It concluded Pittman’s actions in doing so constituted negligence, a
breach of a fiduciary duty to Kearny, and conversion.
The court entered
judgment in favor of Kearney and against Pittman for $21,095.55 of restitution
payments Pittman had received and retained, plus interest from the date of
commencement. On appeal, Pittman contends the court erred in concluding this
lawsuit was not barred by claim preclusion and in ignoring the release and
satisfaction.
II.
SCOPE OF REVIEW
The parties disagree as to the standard of our review. Kearney contends
doctrines of preclusion are reviewed for an abuse of discretion. However, the
cases she cites all involve issue preclusion. Pittman argues the error occurred in
the court’s denial of her motion for summary judgment, which is reviewed for
correction of errors at law.
However, for reasons stated hereafter we are
reviewing the decision of the district court after a trial on the merits, and the case
was filed and tried as a law action. We conclude our review is for correction of
errors at law, as held in a case in which our supreme court stated, in dealing with
claim preclusion following a trial on the merits:
This case was tried as a law action before the district court.
Therefore, our review is for correction of errors at law. The trial
court’s findings have the effect of a special verdict and are binding
if supported by substantial evidence. Evidence is substantial when
a reasonable mind would accept it as adequate to reach a
conclusion. We are not bound by the trial court’s legal conclusions.
However, we will construe the trial court’s findings broadly in favor
of upholding the judgment.
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Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 318 (Iowa 2002)
(citations and quotations omitted).
III.
CLAIM PRECLUSION
“The general rule of claim preclusion provides a valid and final judgment
on a claim precludes a second action on that claim or any part of it.” Arnevik,
642 N.W.2d at 319. The rule applies to matters actually raised in the first action
and to matters that could have been raised and thus “[c]laim preclusion, as
opposed to issue preclusion, may foreclose litigation of matters that have never
been litigated.” Id. It prevents piecemeal litigation and requires a party to litigate
all matters growing out of a claim in one action. Penn v. Iowa Bd. of Regents,
577 N.W.2d 393, 398 (Iowa 1998); B & B Asphalt Co., Inc. v. T. S. McShane Co.,
Inc., 242 N.W.2d 279, 286 (Iowa 1976).
The doctrine will only be applied,
however, if there was “full and fair opportunity” to litigate the claim in the initial
action. Arnevik, 642 N.W.2d at 319 (citing Whalen v. Connelly, 621 N.W.2d 681,
685 (Iowa 2000)).
In determining whether the second suit is precluded, we
consider “(1) the protected right, (2) the alleged wrong, and (3) the relevant
evidence.” Iowa Coal Mining Co., Inc. v. Monroe County, 555 N.W.2d 418, 441
(Iowa 1996).
If the same facts or evidence would sustain both, the two actions
are considered the same within the rule that the judgment in the
former is a bar to the subsequent action. If, however, the two
actions rest upon different states of facts, or if different proofs
would be required to sustain the two actions, a judgment in one is
no bar to the maintenance of the other.
Id. (quoting Phoenix Fin. Corp. v. Iowa-Wisc. Bridge Co., 237 Iowa 165, 175-76,
20 N.W.2d 457, 462 (1946)).
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The defendant-appellant Pittman states as the only issue on appeal the
following:
WHETHER THE DISTRICT COURT ERRED BY REJECTING
DEFENDANT PITTMAN’S MOTION FOR SUMMARY JUDGMENT
ON THE BASIS OF CLAIM PRECLUSION AND FINDING
INSTEAD EACH OF PLAINTIFF’S LAWSUITS REPRESENT
DIFFERENT “WRONGS” AND DIFFERENT “PROTECTED
RIGHTS.”
Thus, the sole issue raised on appeal is whether the district court erred by
denying Pittman’s motion for summary judgment on the basis of claim preclusion.
However,
[a]fter a full trial on the merits, a previous order denying a motion
for summary judgment is no longer appealable or reviewable. At
this point in the proceedings, the denial of the motion for summary
judgment merges with the trial on the merits where the trier of fact
reviewed the exhibits and listened to the testimony of the
witnesses. We, therefore, decline to consider the assignments of
error relating to the denial of the motion for summary judgment and
consider only those claims in connection with the other issues
raised by [the defendant] on appeal.
Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004) (citations omitted). In this
case there are no “other issues raised by [Pittman] on appeal.” The appeal thus
arguably presents no justiciable issue, and we should perhaps summarily affirm
the judgment of the trial court.
Nevertheless, we find it unnecessary to decide this appeal on the abovedescribed procedural basis, because for the reasons stated below we conclude
the district court did not err either in deciding that under the facts of this case the
plaintiff-appellee Kearney’s claim is not barred by the doctrine of claim
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preclusion,1 or in deciding that Kearney’s release and satisfaction did not apply to
the claim asserted in this case.
First, we agree with the district court that the claim in the current lawsuit is
not the same claim as in the first lawsuit. As personal representative of Donald
Barloon’s estate Pittman had certain fiduciary duties.
The claims in the first
lawsuit were that Pittman was negligent and breached fiduciary duties, engaged
in intentional or negligent misrepresentation, and converted assets of the estate
by not taking reasonable steps to identify, locate, and give notice to Kearney, and
by distributing to herself property she had identified as constituting the probate
estate. The claim in the current lawsuit is that Pittman was negligent, breached a
fiduciary duty, and converted an asset of the estate by not at some point
disclosing Zapp’s obligation to make restitution payments as an asset of the
estate and by distributing those restitution payments to herself.
The acts
complained of in the two lawsuits are different, the recoveries demanded are
different, and although some of the evidence that supports the first action also
supports the second, each action requires evidence that is not relevant to the
other and does not support the other. The current lawsuit therefore should not
be precluded. See, e.g., Geneva Corporate Fin. v. G.E.B. Liquidation Corp., 598
N.W.2d 331, 334 (Iowa Ct. App. 1999) (“A second claim is likely to be considered
precluded if the acts complained of, and the recovery demanded, are the same,
or when the same evidence will support both actions.”). Stated in somewhat
1
Pittman’s statement of the issue presented for review raises only the issue of claim
preclusion, and does not raise any issue concerning issue preclusion. We thus need not
and should not address any question of issue preclusion.
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different terms, claim preclusion does not apply because the protected right, the
alleged wrong, and the relevant evidence in the current lawsuit are different than
in the prior lawsuit. See Westway Trading Corp. v. River Terminal Corp., 314
N.W.2d 398, 401 (Iowa 1982) (“In order to determine whether the cause of action
is the same, we examine the protected right, the alleged wrong, and the relevant
evidence.”).
Second, even if we were to conclude the current lawsuit involves the same
claim as the first lawsuit, we would nevertheless hold that it is not barred by the
doctrine of claim preclusion. Claim preclusion applies not only to matters actually
raised in an earlier action, but also to matters that could have been raised in that
earlier action.
However, claim preclusion does not apply unless the parties
sought to be precluded had a full and fair opportunity to litigate the claim in the
earlier action. Arnevik, 642 N.W.2d at 319. Here, Kearney did not have a full
and fair opportunity in the first action to litigate her right to the restitution
payments because of Pittman’s knowing and deliberate concealment, in violation
of her fiduciary duties, of the estate’s right to restitution and Pittman’s receipt of
the payments. We thus agree with the trial court that for this additional reason
Kearney’s present lawsuit is not precluded.
Because claim preclusion does not apply, we briefly discuss Pittman’s
claim that Kearney’s written release bars the current action and reject the claim.
In its ruling following trial on the merits the district court did not address the
release, Pittman did not file a motion requesting the court to address the release,
and thus error, if any, concerning the release arguably is not preserved.
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Concerning the merits of the issue, the language of the “Release and Satisfaction
of Judgment” filed by Kearney clearly relates to and applies only to the money
judgment entered in the first lawsuit and (in denying Pittman’s motion for
summary judgment) the district court correctly held that it had “no bearing on the
claim presented in the current lawsuit.”
We affirm the judgment of the trial court.
AFFIRMED.
Potterfield, J., concurs; Sackett, C.J., dissents.
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SACKETT, C.J. (dissents)
I dissent.
Clearly contrary to the majority’s opinion, claim preclusion
applies here and the case should be reversed on appeal and remanded for a
dismissal. Claim and issue preclusion were addressed by the district court in its
ruling.
Consequently we should address the claims to the extent they were
raised at trial.
The district court concluded claim preclusion did not apply to this suit
because the claims were not the same as in the first suit. The majority has
agreed and affirmed.
The record does not support this conclusion.
Claim
preclusion provides that a valid and final judgment on a claim precludes a second
action on that claim or any part of it.” Arnevik v. Univ. of Minn. Bd. of Regents,
642 N.W.2d 315, 319 (Iowa 2002). The rule applies to matters actually raised in
the first action and to matters that could have been raised and thus “[c]laim
preclusion, as opposed to issue preclusion, may foreclose litigation of matters
that have never been litigated.” Id. (Emphasis added).
The pleadings in the first suit as well as in this suit reveal that Kearney
claimed Pittman breached her fiduciary duty and converted assets of the estate
to her own use. The district court, in its decision in the first lawsuit, after finding
Pittman was negligent and had breached her fiduciary duties, assessed damages
and ruled: “The Court does not find Marcia [Pittman] liable to Bridget [Kearney]
under theories of conversion, negligent misrepresentation, or fraud.”
Although the specific assets of the estate addressed in the conversion and
fraud claims are different, the underlying claim is the same.
The order for
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restitution was a public record that was filed prior to the filing of the first lawsuit.
It could have been discovered and included in the first suit. While the restitution
judgment was not litigated in the first suit it could have been. There was a full
and fair opportunity for it to be litigated, as the facts supporting it were of public
record and clearly discoverable. An adjudication in a former suit between the
same parties on the same claim is final as to all matters that could have been
presented to the court for determination. Israel v. Farmers Mut. Ins. Ass’n of
Iowa, 339 N.W.2d 143, 146 (Iowa 1983). Even though Kearney did not discover
the restitution order until after the first suit, it was discoverable and there was a
“full and fair opportunity” to litigate the claim in the initial action. See Arnevik,
642 N.W.2d at 319. Parties must litigate all matters growing out of their claims at
one time rather than in separate actions. Id. I am therefore forced to conclude
the claims raised in the second suit are all barred by claim preclusion and the
district court abused its discretion in concluding they were not.
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