No. 2-493 / 01-1588Court of Appeals of Iowa.
Filed August 28, 2002
Appeal from the Iowa District Court for Scott County, Max R. Werling (dismissal of defendant Reed) and Mark Smith (dismissal of remaining defendants), Judges.
The plaintiff appeals from the dismissal of his action for breach of contract.
AFFIRMED.
John David Johnson, Anamosa, pro se.
Martha L. Shaff of Betty, Neuman, McMahon, L.L.P., Davenport, for appellee Reed.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant Attorney General, for appellees Seventh Judicial District Department of Correctional Services, Lazio, and Morgan.
Considered by Hayden, Habhab, and Brown, Senior Judges.[*]
PER CURIAM.
Plaintiff, John David Johnson, has appealed from the trial court’s dismissal of his petition for breach of contract. Motions to dismiss filed by several of the defendants were sustained, and the court dismissed the petition against the remaining defendant following sustention of the defendant’s motion in limine. We find the actions of the trial court were proper, and therefore affirm the trial court.
I. Background Facts and Proceedings.
Plaintiff’s petition discloses that following his conviction for a misdemeanor, Johnson was ordered in 1990 to undergo psychological counseling as a condition of his probation. He commenced counseling in February 1990 with defendant, Dr. Phillip R. Reed.
In April 1990, Johnson was charged with three counts of sexual abuse. His probation officer, defendant Brett Morgan, secured a written consent from Johnson authorizing Dr. Reed to disclose information to Morgan concerning his counseling. Dr. Reed provided reports concerning the counseling and Reed’s decision to terminate the counseling.
Johnson was convicted of the three counts of sexual abuse. The trial court imposed three consecutive ten-year sentences in October 1990. The reports of Dr. Reed were included in the presentence investigation report.
Johnson appealed his sexual abuse convictions. One ground was the imposition of consecutive sentences. The court of appeals found the trial court expressly declined to consider or use the confidential information supplied by Dr. Reed in making its decision to impose consecutive sentences, and that consecutive sentences were properly imposed. The convictions were affirmed in December 1991.
Johnson now claims the written consent provided to Dr. Reed authorizing him to disclose information was coerced by officer Morgan and therefore invalid. He further claims he entered into a written contract with Dr. Reed and Reed’s employer, defendant Southpark Psychology. The present action is based on the claimed breach of that contract by Dr. Reed in providing confidential information to Morgan and ultimately to the trial court, who then used it to impose consecutive sentences for the sexual abuse felonies.
Johnson commenced this action in May 2000. All of the defendants filed motions to dismiss. The motions of defendants Morgan, Morgan’s employer, defendant Seventh Judicial District Department of Correctional Services, and Morgan’s supervisor, defendant Michael J. Lazio, alleged the petition failed to state a claim upon which any relief could be granted. These motions were granted. The motions of the remaining defendants, challenging personal jurisdiction, were sustained as to defendants Southpark Psychology and Moreno, but denied as to Dr. Reed.
Prior to trial, Reed’s motion in limine was granted. Johnson conceded he could not succeed in his claim against Dr. Reed in view of the limine ruling precluding further evidence as to the basis for the consecutive sentences. No evidence was presented and the court dismissed his petition.
Johnson now claims the trial court erred in granting the motions to dismiss of defendants Seventh Judicial District, Lazio and Morgan. He also appeals the dismissal of his petition against defendant Reed.
We review rulings on motions to dismiss for correction of errors at law. Meier v. Senecaut III, 641 N.W.2d 532, 537 (Iowa 2002). Our review of the court’s dismissal of plaintiff’s petition is also for legal errors. Iowa R. App. P. 6.4.
II. Motions to Dismiss of Seventh Judicial District, Lazio andMorgan.
These defendants will be referred to collectively as the State defendants. The claims against the judicial district and Lazio are based only on their employment relationship to Morgan. The State defendants’ motions to dismiss can be granted only if the petition, on its face, discloses no right to recover under any state of facts justified by the petition. Ritz v. Wapello County Bd. of Sup’rs., 595 N.W.2d 786, 789 (Iowa 1999). The only facts to be considered are those in the petition, which are taken to be true, judicially noticed facts, and those conceded by the plaintiff. Grimm v. U.S. West Communications, Inc., 644 N.W.2d 8,12 (Iowa 2002).
The motions to dismiss were partially based on expiration of the applicable statutes of limitations. A statute of limitations defense can be considered when raised by a motion to dismiss if the facts shown on the face of the petition, together with any conceded or judicially noticed facts, demonstrate the claim for relief was barred when the action was commenced. Rieff v. Evans, 630 N.W.2d 278, 289 (Iowa 2001).
The movants urge that Johnson’s petition, although denominated a breach of contract claim, in fact alleges a tort claim as to them. The nature of the claim against these defendants is critical, see Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994) (actual nature of action, not theory of recovery, determines proper statute of limitations), as all the events upon which the claim is based took place in 1991 at the latest, and this action was not commenced until 2000. Consequently, only a claim based on a written contract can survive defendants’ statute of limitation defense. Iowa Code § 614.1(5) (2001).[1]
Johnson has consistently maintained the contract upon which he relies is between himself and Dr. Reed. He has never claimed, nor is there any indication in the petition, that the State defendants were parties to such a contract. At most, their conduct could be construed to have interfered with the alleged contract between Johnson and Dr. Reed. Interference with contract rights is a tort claim, see Dan B. Dobbs, The Law of Torts, § 445 at 1257 (2000), subject to the two-year limitation period of Iowa Code § 614.1(2).[2]
If the claim is based on fraud, the limitation period is five years. Iowa Code § 614.1(4).[3] Any claim that the discovery rule in section 614.4[4] is applicable in this case is transparently misguided. It is well settled that this limitation period commences when the plaintiff knew or, in the exercise of ordinary diligence, should have known of the claimed fraudulent act. E.g., Buhman v Oltrogge, 229 Iowa 449, 451, 294 N.W. 788, 789 (1940). Actual knowledge of the fraud is not required, merely knowledge which would lead a reasonable person to make inquiries is sufficient to commence the limitation period. Murphy v. Hahn, 208 Iowa 698, 704, 223 N.W. 756, 760 (1929). Here, Johnson was aware of any fraudulent or other deceitful acts at the time they were allegedly committed in 1990. He raised the issue at his sentencing and in his appeal from the sexual abuse convictions in 1991. We recognize fraudulent concealment can toll the limitations period, Rieff, 630 N.W.2d at 290, but we discern no concealment, or attempt at concealment, here.
Iowa Code chapter 228 prescribes limitations on the disclosure of confidential mental health information. Johnson claims Morgan violated provisions of this chapter by redisseminating confidential information received from Dr. Reed. Without deciding whether chapter 228 provides a civil remedy for its violation,[5] such an action would be subject, at best, to the five-year limitation in Iowa Code section 614.1(4), and thus be time barred.
The State defendants urge that Iowa Code chapter 669 — the Iowa Tort Claims Act — governs Johnson’s claims in this case. The controversy centers on the language which requires the claim be “caused by the negligent or wrongful act or omission of any employee of the state while acting within the scope of the employee’s office or employment.” Iowa Code § 669.2(3)(b) (emphasis added). If, as the defendants contend, the State employees were acting within the scope of their office, additional defenses would be available: failure to file a claim with the Iowa State Appeal Board, as required in section 669.5; failure to file suit within the two-year limitation period in section 669.13, and the immunity granted state employees in section 669.14(4) (exempts from waiver of sovereign immunity any claim against a state employee arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights). Johnson claims the State defendants were not acting within the scope of their office.
Generally, a motion to dismiss is not the appropriate vehicle to determine whether a party’s actions are within the scope of the office See Grimm, 644 N.W.2d at 18 (scope of employment issue beyond reach of motion to dismiss). Whether the State defendants do or do not fall under chapter 669, as a matter of law no action can be maintained by Johnson against them unless based on a written contract.
The trial court also held the injunctive and declaratory relief sought by Johnson’s petition arguably fell within the exclusive ambit of postconviction relief provided in Iowa Code chapter 822. Actions under chapter 822 must be commenced within three years of a final decision. Iowa Code § 822.3. We agree with the trial court’s conclusion that “Plaintiff’s petition, insofar as it is an application for postconviction relief, is barred, and the Petition against State Defendants must be dismissed.” Again, whether chapter 822 applies or not, the action was commenced too late.
III. Dismissal of Petition Against Reed
The appeal from the dismissal of the petition against Dr. Reed comes to us in a somewhat unusual posture. In a hearing immediately prior to commencing trial, the court sustained Reed’s motion in limine, based in part on issue preclusion, which sought to prohibit Johnson from introducing evidence concerning the propriety of consecutive sentences in the sexual abuse cases. The court also sustained the sexual abuse trial judge’s motion to quash the subpoena served on him. The net effect of these rulings was to preclude any new evidence regarding the use of any confidential materials supplied by Reed in sentencing Johnson. Johnson then stated he could not succeed in his claim against Reed in view of these rulings. Although the trial court afforded him ample opportunity, Johnson did not present any evidence or make any offer of proof as to the claimed invalidity of his consent to release information, the written contract with Dr. Reed, or its claimed breach. Since none of the elements of Johnson’s breach of contract claim had been established, the court had no choice but to dismiss the petition.
Johnson argues on appeal that he could have presented other proof of Reed’s alleged breach of contract and his damages at trial. Johnson’s argument in his brief falls far short of providing a record which this court can review. See Rosenberger Enters., Inc. v. Insurance Serv. Corp. of Iowa, 541 N.W.2d 904, 908 (Iowa Ct.App. 1995) (counsel cannot create evidence by argument). Other than the record on the motion arguments and the court’s oral and written ruling on the motions and dismissing the petition, there is nothing for this court to review. See Rasmussen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct.App. 1994) (appellate court will not address issues not properly raised or based on information not contained in the record). This is not an interlocutory appeal challenging the propriety of the court’s ruling on the motions; it is an appeal from a final judgment. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000) (final judgment is one that finally adjudicates rights of all parties). It was Johnson’s responsibility to make an evidentiary record for this court to review.
Johnson has not contested or addressed the trial court’s actions in quashing the sexual abuse trial judge’s subpoena in his brief, nor does he contest the grant of the motion in limine precluding new evidence as to the reason for consecutive sentences. He has provided no argument or authority regarding Reed’s issue preclusion/res judicata arguments. Consequently, any error respecting those issues has been waived. Iowa R. App. P. 6.14(1)(c); Genetzky v. Iowa State Univ., 480 N.W.2d 858, 861
(Iowa 1992); Hubby v. State, 331 N.W.2d 690, 694 (Iowa 1983).
Johnson has requested us to be lenient regarding these shortcomings because he is representing himself. However, a pro se plaintiff undertakes the responsibility for litigating his case, and the trial court assumes no part of that responsibility. Conkey v. Hoak Motors, Inc., 637 N.W.2d 170, 173 (Iowa 2001). Generally, non-lawyers are held to the same standards as lawyers in presenting an appeal. In re Estate of DeTar, 572 N.W.2d 178, 179 (Iowa Ct.App. 1997). We note our supreme court has held that self-representation was not an excuse for failure to preserve error. Johnson v. Nickerson, 542 N.W.2d 506, 513 (Iowa 1996).
The plaintiff has established no error on the part of the trial court in dismissing plaintiff’s petition.
IV. Summary
The limitation periods for commencing this action against defendants Seventh Judicial District Department of Correctional Services, Michael J. Lazio and Brett Morgan had expired, and their motions to dismiss were properly granted.
There was no error in granting defendant Reed’s motion in limine and quashing the criminal case trial judge’s subpoena to testify at this trial. The trial court did not err in dismissing plaintiff’s petition.
Costs are assessed to the plaintiff-appellant.
AFFIRMED.
suggests an implied legislative purpose to recognize or create a civil remedy.