TED LEWISON, ALICE LEWISON, LISA SCHENCK, GEORGE BARTLESON, JOANN BARTLESON, SANDY HEIMER, TOM HEIMER, SUZANNE J. JONES, CHARLES L. JONES, KURT KNAPP and KAREN KNAPP, Plaintiffs-Appellants, vs. HOWARD R. GREEN COMPANY and CITY OF FOREST CITY, IOWA, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-026 / 08-0756
Filed April 22, 2009
TED LEWISON, ALICE LEWISON, LISA
SCHENCK, GEORGE BARTLESON,
JOANN BARTLESON, SANDY HEIMER,
TOM HEIMER, SUZANNE J. JONES,
CHARLES L. JONES, KURT KNAPP and
KAREN KNAPP,
Plaintiffs-Appellants,
vs.
HOWARD R. GREEN COMPANY and CITY
OF FOREST CITY, IOWA,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Douglas S. Russell,
Judge.
Plaintiffs appeal the district court order striking their surreply brief and
granting summary judgment to defendants. REVERSED AND REMANDED.
Edward M. Blando and Christopher L. Bruns of Elderkin & Pirnie, P.L.C.,
Cedar Rapids, for appellants.
Ivan T. Webber and James R. Wainwright of Ahlers & Cooney, P.C., Des
Moines, for appellee-City of Forest City.
Roger W. Stone, Webb L. Wassmer, and Jeffrey A. Stone of Simmons
Perrine P.L.C., Cedar Rapids, for appellee-Howard R. Green Company.
Heard by Vaitheswaran, P.J., and Eisenhauer and Doyle, JJ.
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EISENHAUER, J.
Plaintiffs appeal the district court order striking their surreply brief and
accompanying affidavit.
Plaintiffs also appeal the court’s grant of summary
judgment to the defendants. Because we conclude the district court abused its
discretion in granting the motions to strike, we reverse and remand for the trial
court to reconsider the summary judgment motions based on the full record.
In July 2005, plaintiffs/homeowners filed suit alleging negligence and
gross negligence against Howard R. Green Company and Forest City.
The
homeowners alleged Forest City reconfigured its sanitary sewer system in 1995
and then forced them to connect to the system. Green Company designed the
sewer additions, which backed up numerous times causing damage.
After answering the petition, in January and February 2007, the
defendants each filed two motions for summary judgment. These motions were
denied in June 2007.
Approximately one month later, on July 25, 2007, Forest City filed its third
motion for summary judgment. In support, Forest City cited the deposition of
Ervin Mussman, plaintiffs’ engineering expert. On July 31, 2007, plaintiffs filed a
motion seeking additional time to resist. Plaintiffs noted discovery was ongoing
and Forest City was expected to reply to Green Company’s July 25
interrogatories by August 24, 2007.
Green Company’s third motion for summary judgment was filed on August
2, 2007, and also cited to Mussman’s deposition.
Plaintiff’s motion seeking
additional time to resist again alleged Forest City’s interrogatory answers could
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be relevant to the summary judgment issues.
Therefore, both defendants
acquiesced in plaintiffs incorporating ongoing discovery in their summary
judgment resistance. The court granted additional time for plaintiffs to resist.
Plaintiffs filed their resistance to Forest City’s summary judgment motion
on September 25, 2007, and included a September 24, 2007 affidavit by
Mussman.
Plaintiffs filed their resistance to Green Company’s summary
judgment motion on October 1, 2007, and included Mussman’s September 24
affidavit as well as Mussman’s second affidavit of October 1, 2007.
Green Company next sought and received court permission for two
extensions of time to file a reply brief.
Green Company stated it wanted to
depose Mussman again, which occurred on January 21, 2008. Although Green
Company’s motions and the court’s subsequent orders refer only to a reply brief,
on January 31, 2008, Green Company filed an extensive supplemental statement
of facts in support of summary judgment and attached: (1) Mussman’s new
January 21, 2008 deposition; (2) excerpts from Michael Miller’s March 7, 2007
deposition; (3) the Iowa DNR Wastewater Construction Permit Application; (4)
the Iowa DNR construction permit; (5) David Moermond’s certification of a Green
Company document; (6) a letter from Green Company to the Iowa DNR; (7) the
Iowa DNR wastewater construction staff directory; (8) Jack Fink’s resume; and
(9) excerpts from Fink’s November 6, 2007 deposition. Green Company also
filed a reply brief.
In February, Green Company filed a supplement to this supplemental
statement of facts and included excerpts from the second deposition of Elynn
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Charlson, taken on January 17, 2008.
Green Company stated Charlson’s
deposition “was not available at the time of its prior filing of its supplemental
statement of facts.”
On February 4, 2008, Forest City adopted Green Company’s filings and
filed its own supplemental brief supporting summary judgment. Ten days later,
Forest City filed a supplemental statement of undisputed facts and attached
portions of the second Mussman deposition (January 21, 2008).
On February 20, 2008, plaintiffs filed the document central to this appeal –
a request to file a surreply.
Plaintiffs alleged the recent replies of Green
Company and Forest City “incorporate additional evidence and/or assert
arguments not raised in the original summary judgment filings.” Plaintiffs stated
they had no opportunity to respond to “this new evidence/arguments” and the
interests of justice would be served “if the plaintiffs were allowed to file a surreply
addressing the new arguments/evidence.” In the alternative, the plaintiffs asked
the court to disregard the new arguments/evidence “because a party cannot raise
new arguments in a summary judgment reply.”
On February 26, the court allowed the surreply and ordered its contents
“should be limited to arguments related to the issues set forth in the request.”
On March 18, 2008, plaintiffs filed their surreply and attached Mussman’s
third affidavit along with deposition testimony of Moermond and Charlson.
Plaintiffs explained the discovery timing–after Mussman’s second deposition
(January 21, 2008), witness Moermond was deposed in February 2008. Witness
Charlson’s second deposition (January 17, 2008) had not been available at the
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time of Mussman’s second deposition.
After reviewing the newly-available
deposition testimony, Mussman’s third affidavit affirmed his previous affidavits
and also stated his opinions. Green Company and Forest City moved to strike
the surreply brief and third Mussman affidavit.
On April 7, 2008, the court granted the motions to strike, granted summary
judgment, and dismissed the case. Plaintiffs appeal. Because we find resolution
of the motion to strike issue dispositive, we do not address the summary
judgment issues advanced on appeal.
In granting the motion to strike, the district court stated:
Iowa Rule of Civil Procedure 1.981(3) provides that “[i]f affidavits
supporting the resistance are filed, they must be filed with the
resistance.” Iowa R. Civ. P. 1.981(3) (2008). In [the February 26]
order, the court granted plaintiffs’s request for leave to file their
surreply, but specifically found that the content of the surreply
should be limited to the issues set forth in the request. In their
request, plaintiffs did not seek leave to file an additional affidavit
from Mr. Mussman. Because plaintiffs filed a surreply that
exceeded the scope of the February 26, 2008 order, and that
included an affidavit that was not filed with the resistance to
motions for summary judgment, the motions to strike plaintiffs’
surreply should be granted . . . .
We review the district court’s grant of motions to strike for abuse of
discretion. Thies v. James, 184 N.W.2d 708, 710 (Iowa 1971). In the context of
the facts of this case, as detailed above, we conclude the court abused its
discretion in narrowly interpreting the order of another judge. See id. (stating a
litigant’s rights “should not be denied proper hearing by strict application of legal
formalities”).
We also hold rule 1.981(3) does not prohibit the filing of
subsequent affidavits with a surreply.
Rather, it only requires affidavits
supporting any resistance to be filed simultaneously with the resistance. Here it
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is implicit in the order granting surreply that it included any additional statement
of facts or affidavits.
Defendants did not just file reply briefs, but also filed extensive
supplemental statements of facts including numerous depositions and exhibits.
After the original supplemental facts, Green Company filed a supplement to its
supplement and included Charlson’s second deposition. These filings allowed
evidence into the record to which the plaintiffs had never had an opportunity to
respond and the court-authorized surreply allowed plaintiffs to address this new
evidence. Mussman’s third affidavit responds to the second Charlson deposition,
first utilized in Green Company’s supplement to its supplement. The second
Charlson deposition did not exist when the first and second Mussman affidavits
were drafted.
The court abused its discretion in striking the surreply and affidavit
because, under these facts, its ruling allowed the defendants to supplement the
evidence supporting their original summary judgment filings while prohibiting
plaintiffs from responding in kind as allowed in the court order. We reverse and
remand for the trial court to reconsider the summary judgment motions based on
the full record.
REVERSED AND REMANDED.
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