Opinion
No. 2-1005 / 02-0607
Filed September 24, 2003
Appeal from the Iowa District Court forPottawattamieCounty, Keith E. Burgett, Judge.
Robert Hatcher, both individually and in his capacity as the administrator of the estate of his late wife, Ruth, appeals from the dismissal of his legal malpractice action against attorney Deborah Petersen. AFFIRMED.
Theodore Boecker, James Sherrets, and Bradford Updike of Sherrets Boecker, L.L.C., Omaha, Nebraska, for appellants.
John French of Peters Law Firm, P.C., Council Bluffs, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
Robert Hatcher, both individually and in his capacity as the administrator of the estate of his late wife, Ruth, appeals from the dismissal of his legal malpractice action against attorney Deborah Petersen. We affirm.
Ruth died October 16, 2000.
Background Facts and Proceedings. On October 1, 2001, Robert filed suit against Petersen on his own behalf. The petition alleged that from 1994 through October 4, 1996, Petersen was professionally negligent in her joint representation of Robert and Ruth. The claim stemmed from Robert and Ruth's unsuccessful action to rescind a real estate transaction whereby they arguably conveyed certain property they had held as joint tenants with rights of survivorship. The petition alleged that the unfavorable verdict in the couple's prior lawsuit was a direct and proximate result of Petersen's failure to plead Ruth's mental incapacity, and to investigate or seek rescission of the real estate transaction based on Ruth's medical condition or mental incapacity.
Petersen filed a pre-answer motion which asserted, in pertinent part, that Robert was not the real party in interest. In a November 16, 2001 order, the district court allowed Robert twenty days within which to amend the petition to add Ruth's estate as a plaintiff. On December 4, 2001, Robert filed an amended petition that added Ruth's estate, by and through himself as administrator, as a party plaintiff. Petersen filed a second pre-answer motion, incorporating by reference her earlier pre-answer motion. In part she asserted that the claims in the petition were barred because the real party in interest, Ruth's estate, did not exist before the five-year statute of limitations expired. The district court agreed with Robert's arguments, and dismissed the petition.
Scope of Review . We review the district court's ruling for the correction of errors at law. Iowa R.App.P. 6.4.
The Estate's Claim . On appeal Robert acknowledges that Ruth's estate had not been opened when the five-year statute of limitations expired. He asserts he opened probate of Ruth's estate on November 28, 2001. He nevertheless argues that the district court erred in dismissing the estate's claim, because the claim survived Ruth's death. See Iowa Code § 611.20 (2001) (stating that all causes of action survive and may be brought notwithstanding the death of the person entitled to the same). He contends the district court erred when it failed to preserve the estate's claim by application of the relation-back doctrine. See Iowa R.Civ.P. 1.402; Rieff v. Evans, 630 N.W.2d 278, 288 (Iowa 2001).
Both parties acknowledge that the appropriate statute of limitations is the five-year statute provided by Iowa Code section 614.1(4) (2001). Although both parties assume the statute expired on October 4, 2001, we believe it in fact expired October 16, 2001, one year after Ruth's death. See Iowa Code § 614.9 (providing that when a person having a cause of action dies within one year prior to expiration of an otherwise applicable statute of limitations, the limitation does not apply until one year after the death). However, whether the statute expired October 4 or October 16 makes no difference for our analysis.
Appellee Petersen has filed a supplement to the appendix. The supplement contains documents, apparently from the probate file in Ruth's estate, which purport to show that it was in fact December 4, 2001, on which Robert filed a petition for administration of Ruth's estate and secured an order appointing himself as administrator. We seriously question whether these documents from the probate file are appropriately before us in this appeal in a separate case. However, whether Ruth's estate was opened and Robert appointed as administrator on November 28 or December 4 makes no difference for our analysis. What is significant for our analysis is that the estate was not opened and Robert was not appointed as its administrator until well after the statute of limitations expired.
The fundamental problem with Robert's position is that, while Ruth's claim survived her death, no administrator was appointed until well after expiration of the statute of limitations within which her action might be brought. As a result, following Ruth's death, no individual or entity possessed the legal capacity to bring suit on her estate's behalf prior to the expiration of the statute of limitations. See Iowa Code § 611.22 (providing that any action which survives the death of a person may be brought or continued by the legal representative of the deceased, and shall be deemed to have accrued to such legal representative at the time it would have accrued to the deceased if the deceased had survived). The relation-back doctrine cannot be applied to retroactively avoid a lack of capacity to bring an action. See In re Estate of Voss, 553 N.W.2d 878, 881-82 (Iowa 1996) (citing Pearson v. Anthony, 218 Iowa 697, 702-03, 254 N.W. 10, 13-14 (1934)).
Robert seeks to circumvent this result by asserting the district court could not consider the fact the estate was not opened until after the statute of limitations had expired, as that fact did not appear on the face of the petition. He correctly points out that as a general matter a court may not resort to facts outside of the pleadings when considering a pre-answer motion to dismiss a petition. See Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000). However, resort to facts outside the pleadings may be permitted when (1) those facts arise after the plaintiff has filed the petition, (2) the parties do not dispute those facts, and (3) the issues in the motion to dismiss do not concern the adequacy of the petition to state a claim for relief. Id. It appears the exception may well apply in this case as Petersen's motion, although asserting the petition failed to state a claim upon any relief could be granted, also relied upon Robert's lack of capacity, as administrator, to pursue the estate's claim prior to the expiration of the statute of limitations. See Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 311 (Iowa 1982) (finding the district court could consider the undisputed fact that the plaintiff was discharged as administrator by the court and was subsequently reappointed).
Even if this exception was not applicable, reversal still would not be warranted. We will not reverse a judgment of the district court for error unless it appears that the appellant was prejudiced by the error. Shane v. Russell, 250 Iowa 44, 46, 92 N.W.2d 567, 568 (1958). Here, the plaintiffs acknowledge on appeal that Robert was not appointed as administrator until well after the statute of limitations expired. Under such circumstances error, if any, by the district court in considering this fact was harmless, as it caused no prejudice.
Robert's Claim. Robert also argues the district court erred when it dismissed his individual claim against Petersen. While he agrees that his claim is based wholly on Petersen's alleged failure to investigate and argue Ruth's incapacity, Robert contends he is a real party in interest to the claim as he would of necessity benefit from any rescission of the real estate transaction. We cannot agree.
Dismissal of Robert's claim is appropriate if "it appears to a certainty that [he] would not be entitled to relief under any state of facts that could be proved in support of the claim." Haupt v. Miller, 514 N.W.2d 905, 911 (Iowa 1994). Even if Robert could prove Ruth's incapacity would have constituted grounds to rescind the conveyance of her interest in the couple's property, Robert's conveyance of his interest severed the joint tenancy with right of survivorship, and rendered him a tenant in common. See In re Estate of Thomann, 649 N.W.2d 1, 6 (Iowa 2002). Thus, rescission of the contract as to Ruth's interest in the property would not result in rescission as to Robert's interest. See In re Estate of Rogers, 473 N.W.2d 36, 40 (Iowa 1991) ("The interest of a tenant in common may be transferred . . . without the consent of the remaining co-tenants. In such situations, the person acquiring the interest becomes a tenant in common with the remaining tenants.") (citations omitted). We find no error in this part of the district court's ruling.
Conclusion . Finding no reversible error in either the district court's dismissal of the estate's claim or Robert's claim, we affirm.