STEPHEN C. LEONARD, Plaintiff-Appellant, vs. DANA WOLTMAN, VERNON FICK, THE CITY OF CHEROKEE, IOWA, JARYL GRAUER, et al., Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-803 / 09-0181
Filed November 12, 2009
STEPHEN C. LEONARD,
Plaintiff-Appellant,
vs.
DANA WOLTMAN, VERNON FICK,
THE CITY OF CHEROKEE, IOWA,
JARYL GRAUER, et al.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Frank B.
Nelson, Judge.
Stephen C. Leonard appeals from the district court order granting the
defendants‟ motions to dismiss. AFFIRMED.
Stephen C. Leonard, Anamosa, appellant pro se.
G. Daniel Gildemeister of Gildemeister & Keane, L.L.P., Sioux City, for
appellees Woltman, Fick, and City of Cherokee.
George W. Wittgraf of Sayre, Wittgraff & Meloy, Cherokee, for appellee
Grauer.
John Wibe, Cherokee, and Mark Cozine, Cherokee, appellees pro se.
Considered by Doyle, P.J., Mansfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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DOYLE, P.J.
Stephen Leonard appeals from the district court order granting the
defendants‟ motions to dismiss. Upon our review, we affirm.
I. Background Facts and Proceedings.
On January 14, 2008, Stephen Leonard filed a “Civil Rights Complaint” at
law in the district court against the City of Cherokee (City); Cherokee police
officers Dana Woltman and Vernon Fick; and the officers‟ informant, Jaryl
Grauer, pursuant to Iowa Code section 1.301 (2007) et seq., 42 U.S.C. § 1983,
and “pendent state law claims.”
Leonard alleged the informant illegally
trespassed upon his property on January 26, 1995, which led to a search warrant
that was executed at his residence the same day and the seizure of 156 items of
Leonard‟s property. Additionally, Leonard asserted the officers violated his rights
when they allegedly prepared and executed a search warrant that lacked
probable cause. Leonard also alleged the City failed to train its police officers on
the correct procedures for preparation of search warrants, violating his rights.
Leonard sought monetary damages from each defendant.
Leonard‟s complaint asserted he was never made aware of the application
or the execution of that search warrant or the seizure of his property.
He
maintained he did not learn that the search warrant had been executed until
August 2007. Based upon these claims, Leonard asserted his complaint was
brought under Iowa Code section 614.4, which provides an action for fraud,
mistake, or trespass does not accrue until the action has been discovered.
The City and its police officers filed a motion to dismiss the complaint on
the grounds that the action was barred by the statute of limitations pursuant to
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Iowa Code section 614.1(2) (claims in Iowa founded on injuries to the person or
reputation, whether based on contract or tort, must be filed within two years).
The informant filed a separate motion to dismiss on the grounds that the action
was barred by the statute of limitations pursuant to section 614.1(4) (claims in
Iowa founded on injuries to property must be filed within five years).
All
defendants argued the discovery rule set out in section 614.4 was inapplicable to
Leonard‟s claims.
After the informant filed his motion to dismiss, Leonard filed his application
for entry of default judgment.
Thereafter, Leonard filed resistances to the
defendants‟ motions. He also filed a motion to strike the informant‟s motion to
dismiss, alleging the informant‟s motion was untimely and noting that Leonard
had already filed his “Intent and Application for Entry of Default Judgment.”
Following a telephonic hearing on August 11, 2008, the district court
granted the defendants‟ motions to dismiss “on the statute of limitations
arguments as set out in said motions.” Leonard now appeals.
II. Scope and Standards of Review.
A motion to dismiss may be granted based on the statute of limitations.
Clark v. Miller, 503 N.W.2d 422, 424 (Iowa 1993).
“The party asserting an
exception to a limitations period has the burden of proving the exception.” Bob
McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405,
410 (Iowa 1993). “We review the district court‟s order dismissing the action for
errors at law.”
Clark, 503 N.W.2d at 424; see also Iowa R. App. P. 6.907;
Mlynarik v. Bergantzel, 675 N.W.2d 584, 585-86 (Iowa 2004).
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III. Discussion.
Leonard contends the district court abused its discretion in granting the
defendants‟ motions to dismiss and asserts he was denied a “full and fair”
hearing on his application for entry of default judgment.
We address his
arguments in turn.
A. Statute of Limitations.
“Iowa Code section 614.1 sets forth both general and specific provisions
limiting the time periods in which actions may be brought.”
Bob McKiness
Excavating, 507 N.W.2d at 408 (citations omitted). “[S]ection 1983 actions are
subject to the appropriate state statutes of limitations governing actions „for an
injury to the person or reputation of any person.‟” Callahan v. State, 464 N.W.2d
268, 273 (Iowa 1990) (citation omitted). Under Iowa law, actions founded on
injuries to the person or reputation, whether based on contract or tort, or for a
statute penalty, must be brought within two years.
Iowa Code § 614.1(2).
Actions for injuries to property and for relief on the ground of fraud must generally
be brought within five years. Id. § 614.1(4). “The general provisions of section
614.1 establish a limitations period that begins to run when the cause of action
accrues.” Bob McKiness Excavating, 507 N.W.2d at 408.
Because Leonard‟s claims are premised upon alleged actions that
occurred in 1995, the statute of limitations has clearly run under both sections
614.1(2) and (4). Leonard seeks to avoid the statutory bars, asserting section
614.4 and the doctrine of fraudulent concealment apply to his claims because he
allegedly did not discover defendants‟ 1995 actions until 2007. We disagree.
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1. Section 614.4.
Section 614.4 provides, in relevant part:
In actions for relief on the ground of fraud . . . and those for
trespass to property, the cause of action shall not be deemed to
have accrued until the fraud . . . or trespass complained of shall
have been discovered by the party aggrieved.
(Emphasis added.) Generally, section 614.4 does not apply to actions at law for
money damages. See Bob McKiness Excavating, 507 N.W.2d at 410-11; Pride
v. Peterson, 173 N.W.2d 549, 554-55 (Iowa 1970). “If the action is at law or the
remedy is concurrent, the section [predecessor of section 614.4] has no
application.” Birks v. McNeill, 185 Iowa 1123, 1136, 170 N.W. 485, 490 (1919).
Here, Leonard‟s complaint was filed at law and sought monetary damages on all
of the claims. Thus, section 614.4 would not apply.
2. Fraudulent Concealment.
For the first time, Leonard on appeal argues the doctrine of fraudulent
concealment applies to estop the defendants from asserting a statute of
limitations defense. See Christy v. Miulli, 692 N.W.2d 694, 701 (Iowa 2005)
(noting fraudulent concealment is separate and distinct from the discovery rule
and “does not affect the running of the statutory limitations period; rather, it
estops a defendant from raising a statute-of-limitations defense”). However, “[i]t
is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2006). Thus, we conclude error
was not preserved on this argument.
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B. Default Judgment.
Leonard also argues that the district court abused its discretion when it
allegedly denied him “a full and fair hearing on his application for entry of default
judgment” against the informant. We disagree.
Leonard‟s application for entry of a default judgment was heard on
August 11, 2008, along with the defendants‟ motions to dismiss. Leonard argued
his position on the application, and during the hearing the court found the
informant had filed a resistance adequately responding to Leonard‟s application.
The court did not deny him a full and fair hearing on his application.
Moreover, a party seeking a default judgment must follow the
requirements of Iowa Rule of Civil Procedure 1.972(2) “by giving the required
ten-day written notice before seeking the default and by filing with the application
for default the required certification that notice was given.” Dolezal v. Bockes
Bros. Farms, Inc., 602 N.W.2d 348, 352 (Iowa 1999). A copy of a notice of intent
to file written application for default must be mailed to the party claimed to be in
default.
Iowa R. Civ. P. 1.972(3)(a).
In his application for entry of default
judgment, Leonard asserts he “filed” a notice of intent on June 30, 2008.1 The
rule gives a party a ten-day period of time to respond to the notice and avoid
default. See Baltzley v. Sullins, 641 N.W.2d 791, 792 (Iowa 2002). Within ten
days of the date of the notice, on July 10, 2008, the informant filed a motion to
dismiss under rule 1.421 asserting the court lacked subject matter jurisdiction
1
The record before us does not indicate when Leonard mailed the notice to the
informant. We assume it was mailed on or after June 30, but before July 7, as Leonard
asserts the informant called the penitentiary (where Leonard is incarcerated) on July 7,
2008, and told prison authorities that he did not want correspondence from Leonard and
requested the staff to withhold any mail Leonard addressed to him.
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because Leonard‟s suit was time barred by the applicable statute of limitations.
The informant‟s motion cured the default within the period allowed, and
Leonard‟s application for entry of default judgment was therefore mooted before
it was filed on July 14, 2008. With the default having been timely cured, the court
properly considered the informant‟s motion to dismiss. In sustaining defendants‟
motions to dismiss, the court properly concluded its ruling made consideration of
other pending motions, including Leonard‟s application for entry of default
judgment, unnecessary.
For these reasons, we conclude Leonard‟s claim is
without merit and the district court did not abuse its discretion.
IV. Conclusion.
Because we conclude the district court did not abuse its discretion in
granting the defendants‟ motions to dismiss, and Leonard‟s claim that he did not
receive a full and fair hearing on his application for entry of default judgment is
without merit, we affirm the judgment of the district court.
AFFIRMED.
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