Rosalinda Valles, Individually and on Behalf of F.L., Her Minor Child v. Andrew Mueting, Joseph Liewer, Northwest Iowa Emergency Physicians, P.C., Amy Wingert and Kelly Ryder ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 19–1066
Submitted December 15, 2020—Filed March 19, 2021
ROSALINDA VALLES, Individually and on Behalf of F.L., Her Minor
Child,
Appellant,
vs.
ANDREW MUETING, JOSEPH LIEWER, NORTHWEST IOWA
EMERGENCY PHYSICIANS, P.C., AMY WINGERT, and KELLY RYDER,
Appellees.
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
The mother of an injured child appeals summary judgment rulings
dismissing her medical malpractice negligence action against two
physicians and barring the recovery of certain damages as well as various
court rulings during trial in which the jury rendered a verdict in favor of
other defendants. APPEAL DISMISSED.
Christensen, C.J., delivered the opinion of the court, in which
Waterman, Mansfield, McDonald, and McDermott, JJ., joined. Appel, J.,
filed a dissenting opinion. Oxley, J., took no part in the consideration or
decision of the case.
Jim Leventhal, Bruce L. Braley (argued), Brian N. Aleinikoff and
Benjamin I. Sachs of Leventhal Puga Braley, P.C., Denver, Colorado, for
appellant.
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Nancy J. Penner (argued) of Shuttleworth & Ingersoll, Cedar Rapids;
John C. Gray and Jeff W. Wright of Heidman Law Firm, L.L.P., Sioux City;
Kevin J. Kuhn of Wheeler Trigg O’Donnell, LLP, Denver, Colorado; and
Christine L. Conover and Carrie L. Thompson of Simmons, Perrine,
Moyer & Bergman, PLC, Cedar Rapids, for appellees Mueting, Liewer, and
Northwest Iowa Emergency Physicians, P.C.
William R. Settles (argued), Patrick G. Vipond, and Sarah M.
Dempsey of Lamson Dugan & Murray LLP, Omaha, Nebraska, for
appellees Wingert and Ryder.
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CHRISTENSEN, Chief Justice.
A mother whose son developed severe, disabling injuries from
bacterial meningitis brought an action for medical negligence against the
physicians who treated her son and their employers. Various defendants
entered settlement agreements with the mother and a few others were
dismissed on summary judgment prior to trial. Two physicians and an
employer of one of those physicians went to trial. A jury issued a verdict
in their favor, finding the remaining physicians were not negligent.
The mother appealed and presents several issues on appeal. In
addition to contesting these issues on the merits, the defendants maintain
the appeal is untimely and should be dismissed under Iowa Rule of
Appellate Procedure 6.101(1)(b) because the mother failed to timely file her
notice of appeal. Upon our review, we conclude the appeal is untimely.
Therefore, we lack jurisdiction to consider the appeal and must dismiss it.
I. Background Facts and Proceedings.
On April 3, 2015, Rosalinda Valles took her eleven-year-old son,
F.L., to the emergency room at Mercy Medical Center-Sioux City (Mercy)
because he had a fever, cough, and chills. F.L. returned to the emergency
room two days later, on April 5, where he presented with similar
complaints. By this time, the results of F.L.’s April 3 nasal swab were
available and showed F.L. was positive for Influenza B. F.L. was admitted
to the hospital for further observation, and he remained hospitalized in
this unit until his condition deteriorated on April 8.
On April 8, F.L. became unresponsive to verbal stimuli and was
transferred to the intensive care unit, where a physician performed a
lumbar puncture. When F.L.’s lumbar puncture revealed an “elevated
white count and decreased glucose concentration, [and] presence of
Bandemia was indicated at 49%,” F.L. was transported by airlift at
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9:40 a.m. to the pediatric intensive care unit at the Children’s Hospital
and Medical Center in Omaha, Nebraska. F.L. was admitted with
“meningitis/bacteremia.” F.L. continues to suffer severe and debilitating
injuries and will for the remainder of his life.
On January 28, 2016, Valles, individually and on behalf of her minor
son, F.L., filed this lawsuit. Valles amended her petition a number of
times. In the final petition, Valles sued Mercy and the following physicians
for medical negligence and parental loss of consortium: Jaime Dodge, Leah
Johnson, Joseph Liewer, Thomas Morgan, Andrew Mueting, Jesse
Nieuwenhuis, Rex Rundquist, Kelly Ryder, Said Hasib Sana, Aruntha
Swampillai, and Amy Wingert. She also asserted direct and vicarious
liability claims against Mercy; Northwest Iowa Emergency Physicians,
P.C.; Siouxland Medical Education Foundation; and Prairie Pediatrics &
Adolescent Clinic, P.C., doing business as Prairie Pediatrics, P.C. Between
the filing of this lawsuit on January 28 and the commencement of trial on
October 30, 2018, there were numerous motions, pretrial hearings,
amended petitions, and settlements. The only remaining claims by the
time of trial were those against Dr. Liewer, Dr. Mueting, and Northwest
Iowa Emergency Physicians, P.C. (Defendants).1
The jury trial commenced on October 30 and spanned several weeks.
On November 21, the jury returned a verdict in favor of Defendants, finding
they were not negligent. Since then, Valles has filed various motions,
dismissals, requests, and appeals. We discuss those relevant to this
appeal.
After trial, Valles filed a motion to extend the time for posttrial
filings, which the district court granted on December 6 to extend the
1Northwest Iowa Emergency Physicians, P.C. is Dr. Liewer’s employer.
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deadlines for filing bills of exceptions and posttrial motions until
December 21. On December 20, Valles filed a motion for entry of order
nunc pro tunc asking the district court to amend its November 21 order of
judgment to identify specifically the defendants who were exonerated by
the jury as opposed to settling defendants who were also in the case
caption. On January 25, 2019, the district court entered an order
amending the judgment to make this clarification.
On December 20, 2018, Valles also filed her first notice of appeal in
our court
from the order and judgment entered in this case on the 21st
day of November, 2018, from the “Enlarged Finding on
Plaintiff’s Motion for Directed Verdict on Comparative
Negligence of Mercy Nurses” which was later filed in this case
on the 5th day of December, 2018, and from all adverse rulings
and orders inhering therein.
Valles’s notice explained that she did
not believe that this case is ripe for an appeal because
stipulations and orders of dismissal have not yet been entered
with respect to several of the settling defendants . . . .
Therefore, the order and judgment entered on the 21st day of
November, 2018, was not actually dispositive of the entire
case. In an abundance of caution, however, Plaintiff files this
protective notice of appeal.
(Emphasis added.)
Before we entered any rulings on Valles’s first notice of appeal,
Valles filed a bill of exceptions in the district court on December 21, which
Defendants resisted. The district court issued its order denying this bill
on January 25, 2019, explaining it no longer possessed jurisdiction to
address Valles’s request because Valles had filed her notice of appeal the
day before filing her bill of exceptions.
We entered an order on February 5, requiring Valles to “file a
statement concerning whether this court has jurisdiction” to hear that
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appeal and welcoming responses from Defendants. In response, Valles
asked us to dismiss that appeal without prejudice and stated it “should
not be considered an application for interlocutory review.” Defendants did
not resist dismissal of the appeal, but they maintained there was no
authority for dismissal without prejudice and “reserve[d] all argument and
positions in any subsequent appeal . . . , including as to its timeliness.”
On March 14, we issued an order treating Valles’s first notice of appeal as
an application for interlocutory appeal, which we denied. Procedendo
issued on April 10.
On April 15, Valles filed a dismissal of settling defendant Mercy in
district court. On April 30, she dismissed the remaining settling
defendants. On May 28, Valles filed a motion requesting an order entering
final judgment, noting the district court had entered judgment in favor of
Dr. Liewer, Dr. Mueting, and Northwest Iowa Emergency Physicians, P.C.,
and all other defendants had been otherwise dismissed from the case. The
district court entered Valles’s proposed order the next day. Valles filed her
second notice of appeal on June 24, and we retained the appeal. The only
defendants who are parties to this appeal are the three defendants who
went to trial, Dr. Liewer, Dr. Mueting, and Northwest Iowa Emergency
Physicians, P.C., and two defendants who were dismissed by summary
judgment prior to trial, Dr. Ryder and Dr. Wingert.
II. Jurisdiction.
We must deal with a threshold matter before addressing any of
Valles’s claims on appeal, as all defendants on appeal contend Valles’s
appeal is untimely. If they are correct, we lack jurisdiction to consider
Valles’s appeal. See Milks v. Iowa Oto-Head & Neck Specialist, P.C.,
519 N.W.2d 801, 803 (Iowa 1994) (“The timeliness of a notice of appeal is
mandatory and jurisdictional . . . .”). “[W]ant of jurisdiction of the subject
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matter may be taken advantage of at any stage of the proceedings” and
“need not be pled.” Lloyd v. State, 251 N.W.2d 551, 556 (Iowa 1977).
All defendants on appeal maintain we have no jurisdiction to
consider Valles’s appeal of the district court’s summary judgment rulings
pertaining to them and challenges to the district court’s decisions during
trial because the appeal is untimely. They contend the district court’s
November 21, 2018 judgment in favor of Defendants following the jury’s
November 21 verdict was the final, appealable order pertaining to them,
and Valles failed to file a proper notice of appeal within thirty days of that
judgment. Alternatively, they contend that Valles’s April 30, 2019,
voluntary dismissal of the remaining settling defendants triggered the
thirty-day appeal deadline because it eliminated the only remaining
defendants from the case. Again, they contend that Valles failed to file a
timely notice of appeal after April 30.
Under our appellate rules of procedure, “[a] notice of appeal must be
filed within 30 days after the filing of the final order or judgment.” Iowa R.
App. P. 6.101(1)(b).
A final judgment or decision is one that finally
adjudicates the rights of the parties. It must put it beyond the
power of the court which made it to place the parties in their
original position. A ruling or order is interlocutory if it is not
finally decisive of the case.
In re M.W., 894 N.W.2d 526, 532 (Iowa 2017) (quoting Johnson v. Iowa
State Highway Comm’n, 257 Iowa 810, 812, 134 N.W.2d 916, 918 (1965)).
In cases like this involving partial determinations made by a district court,
rule 6.101(1)(d) provides the following additional means of appeal:
A final order dismissing some, but not all, of the parties or
disposing of some, but not all, of the issues in an action may
be appealed within the time for appealing from the judgment
that finally disposes of all remaining parties and issues to an
action, even if the parties’ interests or the issues are severable.
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Iowa R. App. P. 6.101(1)(d).
This rule promotes the “long followed . . . general policy against
piecemeal appeals.” In re T.R., 705 N.W.2d 6, 10 (Iowa 2005); cf. Ahls v.
Sherwood/Div. of Harsco Corp., 473 N.W.2d 619, 623 (Iowa 1991)
(“Recognition of finality here, moreover, will not offend our policy against
piecemeal appeals because there are no remaining issues to be tried or
appealed.”). Here, the district court’s summary judgment rulings in favor
of Dr. Ryder and Dr. Wingert and its entry of judgment in the remaining
Defendants’ favor following trial only disposed of some, but not all, of the
issues because other defendants remained in the action pending probate
court approval of their proposed settlements with Valles. The issues
pertaining to the defendants in this appeal are severable from the interests
of the settling defendants, so Valles had the option to pursue an
interlocutory appeal or wait until the final disposition of the case with
respect to all issues and parties. See Est. of Countryman v. Farmers Coop.
Ass’n, 679 N.W.2d 598, 601 (Iowa 2004). Consequently, Valles’s first
notice of appeal following the November 21, 2018 entry of judgment was
an interlocutory appeal so long as other parties remained in the case. See
id. at 602 (“In this case, the key event [in determining finality] is the date
the last remaining claim against a party was dismissed.”); IBP, Inc. v. Al-
Gharib, 604 N.W.2d 621, 627 (Iowa 2000) (“[A] ruling is interlocutory if it
is not finally decisive of the case.” (quoting Recker v. Gustafson,
271 N.W.2d 738, 739 (Iowa 1978))).
After we denied Valles’s application for interlocutory appeal from the
November 21 judgment, Valles filed a dismissal of settling defendant Mercy
on April 15, 2019, and a dismissal of the remaining settling defendants on
April 30. Then, on May 28, Valles filed a motion in district court requesting
an order entering final judgment, noting the district court had entered
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judgment in favor of Defendants and all other defendants had been
dismissed from the case. The district court entered Valles’s proposed order
the next day, May 29, and Valles filed her notice of appeal on June 24—
fifty-five days after she dismissed the final settling defendants but within
thirty days of the May 29 district court order. Ultimately, the issue of
whether the April 30 dismissal or May 29 order constitutes the dispositive
date of finality for appeal purposes hinges on whether the April 30
dismissal was self-executing or whether Valles needed court approval to
dismiss the remaining parties. Est. of Countryman, 679 N.W.2d at 601.
Under rule 1.943 of our rules of civil procedure,
[a] party may, without order of court, dismiss that party’s own
petition, counterclaim, cross-claim, cross-petition or petition
of intervention, at any time up until ten days before the trial
is scheduled to begin.
Iowa R. Civ. P. 1.943. There was no trial date set for the remaining parties,
so Valles had the absolute right to dismiss the settling defendants when
she did without court approval. Thus, her April 30 dismissal was self-
executing and marked the date of finality for appeal purposes.
Nothing remained pending in this case after Valles dismissed the
last of the remaining defendants on April 30. Yet, Valles waited until
June 24—fifty-five days—to file her notice of appeal. Because Valles failed
to file her notice of appeal within thirty days of the resolution of the last
remaining issues before the district court, her appeal is untimely. See
Robinson v. Safeway Ins., No. 1–09–0361, 2011 WL 9673430, at *5
(Ill. Ct. App. Dec. 2, 2011) (“[I]t is well established that when a plaintiff
voluntarily dismisses the remaining counts of a complaint, all previously
entered orders disposing of other counts in that complaint become
immediately final and appealable.”); Denham v. City of New Carlisle,
716 N.E.2d 184, 187 (Ohio 1999) (“[W]e hold that a trial court’s decision
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granting summary judgment based on immunity for one of several
defendants in a civil action becomes a final appealable order when the
plaintiff voluntarily dismisses the remaining parties to the suit pursuant
to [the rule governing voluntary dismissal of the remaining parties to the
suit].”); 15A Charles Alan Wright et al., Federal Practice and Procedure
§ 3914, at 487–88 (2d ed. 1991) (discussing the concept of cumulative
finality); cf. Christ’s Legacy Church v. Trinity Grp. Architects, Inc.,
417 P.3d 1223, 1226 (Okla. Civ. App. 2018) (“Indeed, if some claims (or
parties) are not adjudicated in an interlocutory, partial summary judgment
ruling, a voluntary dismissal of the remaining claims (or parties) is
sufficient to render the partial summary judgment ruling final and
reviewable, and the filing of the dismissal triggers the commencement of
appeal time.”). Valles cannot rely on her May 28 motion requesting the
district court enter a superfluous order of final judgment dismissing
defendants who had already been dismissed to sidestep our appellate
deadline.
The dissent argues that when Valles filed her April 30 dismissal of
the remaining defendants under rule 1.943, it was not self-executing
because it was not filed “at any time up until ten days before the trial is
scheduled to begin.” We do not believe this reading of rule 1.943 is
plausible. A trial had occurred, but it did not involve these defendants.
Thus, the dismissal was filed “at any time up until ten days before the trial
is scheduled to begin” as to these defendants. Notably, Valles herself did
not believe she needed court permission to dismiss these defendants.
What she filed on April 30 was a unilateral “Dismiss with Prejudice” that
did not ask for court approval. For the aforementioned reasons, we lack
the jurisdiction to consider Valles’s untimely appeal and affirm the
judgment of the district court.
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III. Conclusion.
For the foregoing reasons, we dismiss this appeal.
APPEAL DISMISSED.
Mansfield, Waterman, McDonald, and McDermott, JJ., join this
opinion. Appel, J., files a dissenting opinion. Oxley, J., takes no part.
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#19–1066, Valles v. Mueting
APPEL, Justice (dissenting).
I respectfully dissent. In my view, the majority misinterprets the
text of the relevant rule, fails to recognize its underlying purpose, and
comes up with unpersuasive policy reasons to rewrite the text and
reformulate the underlying policy.
The live wire jurisdictional issue in this case is whether the filing of
the voluntary motions to dismiss on April 30, 2019, were self-executing or
whether they required judicial approval before becoming final. If the
voluntary dismissals were self-executing, the plaintiff’s appeal on June 28
fifty-five days later would be time-barred. If, however, the voluntary
dismissals required leave of court, the appeal would be timely.
At early common law, a plaintiff, in some instances, could take a
nonsuit even after a verdict if the plaintiff “did not like his damages.” Note,
The Right of a Plaintiff to Take a Voluntary Nonsuit or to Dismiss His Action
Without Prejudice, 37 Va. L. Rev. 969, 970 (1951) [hereinafter Lipkin,
Voluntary Nonsuit]. This regime provided the plaintiff with an advantage
as the plaintiff could continue suing until he was satisfied with the damage
recovery. Id. Later, the common law limited voluntary dismissals to the
period prior to a verdict. Id. Modern statutes and rules have been put in
place to regulate a plaintiff’s ability to engage in voluntary dismissals of
lawsuits. Id.The relevant rule is Iowa Rule of Civil Procedure 1.943. That rule
provides, in relevant part: “[a] party may, without order of court, dismiss
that party’s own petition . . . at any time up until ten days before the trial
is scheduled to begin. Thereafter a party may dismiss an action . . . only
by [leave] of the court.” Id. (emphasis added).
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A trial in this matter occurred with a jury verdict on
November 21, 2018. Prior to trial, however, the plaintiffs had reached a
settlement with some defendants that was subject to approval in probate
court. On December 20, the plaintiffs filed a motion with the district court
requesting that an order be entered declaring that the jury’s verdict was
only a final judgment as to the nonsettling defendants but not a judgment
in favor of the settling defendants. On January 24, 2019, the nonsettling
defendants responded that they did not object to the entry of an order
making the clarification. On January 25, the district court entered the
requested order making clear that the jury’s verdict was not a final
judgment against the settling defendants.
Ultimately, Valles was able to complete the settlements. On
April 15, Valles filed a motion to dismiss Mercy Health Services–Iowa,
Corporation. On April 30, Valles dismissed the remaining parties.
On May 28, Valles asked the district court to enter a final order and
judgment in the case. On May 29, the district court complied. On
June 24, a notice of appeal was filed.
The critical issue in this case is whether the voluntary dismissals
filed on April 15 and April 30 were self-executing. In other words, did the
dismissals take immediate effect and constitute a final judgment upon
their filing with the clerk of court without the need for judicial approval. If
they were self-executing, the plaintiff’s notice of appeal on June 24 was
outside the thirty-day window, and this court lacks jurisdiction to hear the
cause. If the voluntary dismissals were not self-executing, and judicial
action was required before they became effective, the June 24 notice of
appeal would be timely.
The general rule is clear enough. A voluntary dismissal filed more
than ten days before trial is self-executing and becomes final on the day it
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is filed. Iowa R. Civ. P. 1.943. A voluntary dismissal filed within “ten days
before the trial is scheduled to begin” is not self-executing and requires
approval by the court. Id. The rule goes on to state that “[t]hereafter,”
leave of court is required for voluntary dismissals. Id.The language “up until ten days before the trial is scheduled,” when
coupled with the “thereafter” clause, establishes a finish line, not a
goalpost. Were the voluntary dismissals filed within the rule’s deadline in
this case prior to the middle of November 2018, they would be self-
executing final dismissals and not require further court action.
The “up until ten days” language creates a window of opportunity
for a plaintiff to voluntarily dismiss the claim without prejudice. The
window opens with the filing of the complaint, and it closes ten days prior
to a scheduled trial. Under the rule, the window for voluntary dismissals
does not open again. But under the majority view, there is the opening of
a second window not contained in the rule.
Aside from the lack of textual support for the second window, it
makes sense for the district court to retain jurisdiction over the matter.
Historically, the purpose of regulating nonsuits was to prevent plaintiffs
from engaging in late dismissals. Lipkin, Voluntary Nonsuit, 37 Va. L. Rev.
at 970. The modern regulations were thus tailored to prevent the result
advocated by the majority, namely, unregulated voluntary dismissal by the
plaintiff after trial. Id. In addition, one purpose of maintaining judicial
control over late filed dismissals is to allow the district court to consider
whether to insist that dismissal is made with prejudice or to assess costs
and fees against a party for engaging in unnecessary and prolonged
litigation. See Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174
(5th Cir. 1990) (construing parallel provisions of Federal Rule of Civil
Procedure 41(a)(2)); see also 9 Charles A. Wright & Arthur R. Miller,
15
Federal Practice and Procedure § 2364, at 556 (4th ed. 2020) (stating the
purpose of rule 41(a)(2) is “to prevent voluntary dismissals which unfairly
affect the other side, and to permit the imposition of curative conditions”)
(quoting Alamance Indus., Inc. v. Filene’s, 291 F.2d 142, 146
(1st Cir. 1961)).
The majority seeks to enlist in support of its position the doctrine of
pragmatic finality. But the leading pragmatic finality case cuts dead
against the majority position. As will be seen, the doctrine of pragmatic
finality is an ad hoc exception to the ordinary finality rule designed to
encourage consideration of appeals on the merits. It cannot be used to
defeat Iowa Rule of Civil Procedure 1.943 or our ordinary approach to
finality.
The seminal case of pragmatic finality cited by the majority is Ahls
v. Sherwood/Division of Harsco Corp., 473 N.W.2d 619 (Iowa 1991). In
Ahls, one party was dismissed early in the litigation for want of personal
jurisdiction on December 23, 1987. Id. at 620–21. The remaining parties
then settled on October 3, 1989, the day set for trial. Id. at 621. On the
same day, the district court entered an order which noted the settlements
and assessed a late penalty. Id. Dismissal documents implementing the
settlement were filed on November 15. Id. On November 27, a party
sought to appeal the district court’s December 28 dismissal order. Id. at
621, 624.
The fighting issues in Ahls was whether the litigation were twofold.
First, was the October 3 order acknowledging that the case had been
settled a final order. Id. at 621–22. Second, were the dismissal documents
filed by the parties on November 15 a final order for purposes of appeal.
Id. at 622–23.
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The Ahls court dispatched the first claim quickly, noting that
although the district court’s order announced the settlement, it did not
amount to a final order of the court. Id. at 622. The court then turned to
whether the filing of the November 15 dismissals by the parties was a final,
and therefore appealable, order. Id.The Ahls court said no. Id. The Ahls court noted that that the filing
of the voluntary dismissals “was not an action by the court at all.” Id.Quoting a federal district court case, the Ahls court declared that “[t]he
distinction is obvious between a final decree and a stipulation upon which
such a decree may be entered.” Id. (alteration in original) (quoting Roemer
v. Neumann, 26 F. 332, 334 (C.C.S.D.N.Y. 1886)). The court went on to
emphasize that “while [the] case was fully concluded, there was no formal
order which may be considered a final order for purposes of appeal.” Id.The pronouncement in Ahls is completely consistent with the position of
the plaintiffs in this case.
But that was not the end of the Ahls matter. The Ahls court then
considered the doctrine of pragmatic finality that had been applied in
federal courts. Id. at 623. Quoting Unioil, Inc. v. E.F. Hutton & Co.,
809 F.2d 548, 554 (9th Cir. 1986), the Ahls court noted that a court “may
treat an interlocutory order as a final order when that portion of the case
that remained in the district court has subsequently been terminated.”
Ahls, 473 N.W.2d at 623.
The Ahls court noted that “there are problems inherent in
recognizing ad hoc exceptions to our finality rule.” Id. The Ahls court
quoted a dissent in a federal case which stated:
[T]he newly created exception to finality replaces with large
elements of uncertain administration the previously certain
and efficient rule of finality . . . The need for clear and easily
administered rules as to the threshold adjective issue of
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reviewability overrides any values of flexible case-by-case
administration.
Id. (quoting Newpark Shipbuilding & Repair, Inc., v. Roundtree,
698 F.2d 743, 757 (5th Cir. 1983) (Tate, J., dissenting)).
Thus, the Ahls court was not overturning the general rule that a
court order was required for a final order. Instead, it permitted an ad hoc
exception to permit appeal of an interlocutory order in the interest of
fairness to the parties. In this case, the majority turns the shield of the
ad hoc exception designed to promote fairness to the parties and permit
resolution of a case on the merits into a sword that eviscerates the ordinary
rule.
The majority then cites a couple of authorities for the proposition
that when a voluntary dismissal occurs for all remaining parties, prior
interlocutory appeals become final. See Robinson v. Safeway Ins.,
No. 1–09–0361, 2011 WL 9673430, at *5 (Ill. App. Ct. Dec. 2, 2011);
Denham v. City of New Carlisle, 716 N.E.2d 184, 187 (Ohio 1999); Christ’s
Legacy Church v. Trinity Grp. Architects, Inc., 417 P.3d 1223, 1226 (Okla.
Civ. App. 2018). It is blackletter law that once voluntary dismissals are
final, the prior interlocutory orders in a case also become final. But the
majority has not cited—and I have not found any—passage in these cases
that considers the question of when a voluntary settlement is self-
executing or when it requires judicial approval under a rule like Iowa Rule
of Civil Procedure 1.943. These cases are the proverbial boxed canyon that
lead nowhere on the issue at hand.
The majority drives to its result by airbrushing language out of
rule 1.943. The majority provides a partial block quote of the rule:
[a] party may, without order of court, dismiss that party’s own
petition, counterclaim, cross-claim, cross-petition or petition
of intervention, at any time up until ten days before the trial
is scheduled to begin.
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The majority, however, does not present the relevant part of the next
important sentence of the rule. Here is the text of the rule with the omitted
passage restored:
[a] party may, without order of court, dismiss that party’s own
petition, counterclaim, cross-claim, cross-petition or petition
of intervention, at any time up until ten days before the trial
is scheduled to begin. Thereafter a party may dismiss an
action or that party’s claim therein only by consent of the court
which may impose such terms or conditions as it deems proper.
Iowa R. Civ. P. 1.943 (emphasis added). The plaintiff’s dismissal occurred
after the expiration of ten days prior to a “scheduled” trial. And the
plaintiff’s dismissal occurred “thereafter” the expiration of the ten-day
period prior to a “scheduled” trial. If we were to follow the text of the
“scheduled” clause and the “thereafter” clause, court approval would be
required for the voluntary dismissals at issue here.
The majority attempts to make hay out of the fact that the April 30
dismissal did not expressly seek court approval. The majority chooses to
read the plaintiff’s mind based on what was not said, ordinarily a dubious
enterprise. In any event, I see nothing in rule 1.943 that makes the
requirement of the rule dependent on a party’s explicit ask.
And, like its partial presentation of the text of the rule, the majority
gives a partial history. After the district court took no action on the
April 30 voluntary dismissal, on May 28, the plaintiffs filed a motion
requesting that the district court take appropriate action under rule 1.943.
And the district court entered the requested order on May 29. If it was
important to interpret what the plaintiff’s omission meant on April 30, it
should be informed by what was said in the later filing. In my view,
however, the subjective inquiry adds nothing to the resolution of this case
and in future cases will hopefully only be regarded as an odd observation
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that does not establish a precedent for subjective interpretation of our
rules of procedure.
Because of the text of Iowa Rule of Civil Procedure 1.943, the
applicable underlying policies, and the applicable case law, I would hold
that this court has jurisdiction to hear the appeal.