Opinion
No. 2-247 / 01-1157.
Filed May 31, 2002.
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Dennis Pickens appeals the decision of the district court that dismissed his petition on the grounds of failure to state a cause of action, issue preclusion, and statute of limitations. AFFIRMED.
Dennis J. Pickens, pro se, Ottumwa, for appellant.
Glenn L. Smith and Brian L. Stowe of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., Des Moines, for appellee.
Considered by Mahan, P.J., and Miller and Hecht, JJ.
Dennis Pickens appeals the decision of the district court that dismissed his petition against attorneys who represented his opponent in a former lawsuit, on the grounds of failure to state a cause of action, issue preclusion, and statute of limitations. He claims his petition should not have been dismissed. We affirm.
Pickens was formerly employed by Soo Line Railroad. He injured his back during his employment and filed a suit in federal court under the Federal Employment Liability Act (FELA). Todd Gaffney, of the law firm Finley, Alt, Smith, Scharnberg, May and Craig, P.C. (Finley law firm), represented Soo Line in the suit. Trial was held in May 1996. Pickens received about $365,000 in damages.
Pickens was terminated by Soo Line in October 1996. Pickens then filed a federal suit raising claims relating to the Americans with Disabilities Act (ADA), breach of contract, and judicial estoppel. Kevin Driscoll of the Finley law firm represented Soo Line in this suit. The issues in this action were decided adversely to Pickens and were upheld on appeal. See Pickens v. Soo Line R.R. Co., 264 F.3d 773, 775 (8th Cir. 2001).
Pickens filed the present lawsuit in Iowa district court on March 29, 2001, claiming Gaffney, Driscoll, and the Finley law firm had engaged in deceit or collusion by asserting in the FELA suit that Soo Line would accommodate his injury by permitting him to work two or three days per week. Pickens claims the jury mitigated his damages in the FELA action, believing he would have continued employment. He alleged Soo Line then denied accommodation and terminated him. He also claimed that during the ADA trial, defendants suppressed their statements in the FELA trial, and made representations contrary to those in the FELA trial, which resulted in a judgment as a matter of law for Soo Line. Pickens sought treble damages under Iowa Code section 602.10113 (1999), which provides:
An attorney and counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge or a party to an action or proceeding, is liable to be disbarred, and shall forfeit to the injured party treble damages to be recovered in a civil action.
Defendants filed a motion to dismiss on the grounds of failure to state a cause of action, issue preclusion, and statute of limitations. The district court granted the motion to dismiss on each of these grounds. The court found the statements of an attorney during litigation are absolutely privileged. The court also found Pickens's claims were rejected in the ADA lawsuit, and thus were now barred by the doctrine of issue preclusion. Finally, the court determined section 602.10113 created a "statute penalty" and Pickens's suit was untimely under the two-year statute of limitations found in section 614.1(2). Pickens appeals.
I. Scope of Review
We review a district court's ruling on a motion to dismiss for corrections of errors at law. Robbins v. Heritage Acres, 578 N.W.2d 262, 264 (Iowa Ct.App. 1998). A motion to dismiss must stand or fall on the exclusive contents of the petition and cannot rely on facts not alleged in the petition or facts presented at an evidentiary hearing. Id. We consider the petition in the light most favorable to the plaintiff. Hunt v. State, 538 N.W.2d 659, 661 (Iowa Ct.App. 1995).
II. Issue Preclusion
The district court determined Pickens's petition should be dismissed on the ground of issue preclusion, finding the issues Pickens raised in the present action had been addressed in the ADA suit. The court determined all the facts and evidence that served as the basis for this suit were considered in the ADA suit.
Res judicata, including issue preclusion, is an affirmative defense that should not be raised by a motion to dismiss unless the nature of the prior adjudication appears on the face of the petition or arises from matters of which the court may take judicial notice. Robbins, 578 N.W.2d at 265. Here, the claims are based on alleged statements made during the FELA and ADA trials, so these actions are mentioned in the petition. The district court quoted extensively from the federal district court ruling in the ADA trial, and we determine the court took judicial notice of the ruling.
Issue preclusion bars relitigating in a subsequent action issues raised and fully litigated in a prior action. Buckingham v. Federal Land Bank Ass'n, 398 N.W.2d 873, 875 (Iowa 1987). The four elements of issue preclusion are: (1) the issue must be identical in the two actions; (2) the issue must be raised and litigated in the prior action; (3) the issue must be material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the prior action must be necessary and essential to the judgment. Treimer v. Lott, 587 N.W.2d 622, 625 (Iowa Ct.App. 1998).
In the ADA trial, Pickens claimed Gaffney's statements during the FELA trial created an employment contract to accommodate his injury, which Soo Line breached by terminating him. The federal district court determined:
The statements of his own attorney and Railroad counsel were made entirely in the context of litigation in the FELA claim. The Railroad knew, and Pickens should reasonably have understood that no express or implied meeting of the minds occurred during that trial. The alleged promises were too vague and indefinite to be enforced. Moreover, the Railroad's alleged promise would have conflicted with its duties under its Collective Bargaining Agreement with the United Transportation Workers Union that represented Pickens throughout his employment as a Railroad employee.
(Citation omitted.)
Pickens also alleged that Soo Line was barred by the doctrine of judicial estoppel from taking a different stance at the ADA trial than it had at the FELA trial. On this issue, the federal district court stated, "Pickens has failed to prove that the Railroad, through its attorney representing the Railroad or any other authorized person, represented facts or took a position in a legal proceeding that it later changed to the detriment of Pickens."
We conclude the issues raised in the present case were raised and litigated in the ADA trial. All four elements of issue preclusion were met by the federal district court's consideration of these issues.
We turn to the question of whether the defendants in the present action may invoke the defensive use of the doctrine of issue preclusion. Defensive use of issue preclusion occurs when a stranger to the judgment in the former action, ordinarily the defendant in the second action, relies upon the prior judgment as conclusively establishing an issue that the party must prove as an element of the defense. Dettmann v. Kruckenberg, 613 N.W.2d 238, 244 (Iowa 2000). Issue preclusion does not require mutuality of parties if it is being invoked defensively against a party so connected to the former action as to be bound by that resolution. Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 399 (Iowa 1998).
We determine the defendants here may invoke the defensive use of issue preclusion against Pickens, who was a party to the previous action. We conclude Pickens's action is barred by the doctrine of issue preclusion and was properly dismissed. Because we determine dismissal was proper on this ground, we do not address other issues raised on appeal.
AFFIRMED.