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Estate pf Kuhns v. Marco5/10/2000
e 2 argument. Issues must be presented to and passed upon by the trial court before they can be raised and decided on appeal. Johnston Equip. Corp. v. Industrial Indemn., 489 N.W.2d 13, 16 (Iowa 1992) (citing State Farm Mut. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 207 (Iowa 1984)). A rule 179(b) motion to enlarge or amend a ruling is necessary for preservation of error when the district court fails to resolve a matter properly submitted. Iowa R. Civ. P. 179(b); Johnston Equip., 489 N.W.2d at 17.
While plaintiffs' attorney did raise the real party in interest issue at the hearing on Marco's motion for summary judgment, the district court did not address the issue in its ruling which concentrated on the rule 69(e) issue. Plaintiffs did not file a rule 179(b) motion seeking to obtain a ruling from the district court on whether rule 2 allowed their action to proceed notwithstanding the provisions of rule 69(e). We therefore conclude plaintiffs have failed to preserve error on their rule 2 argument. Failure to preserve error bars our review on appeal. Nepstad Custom Homes Co. v. Krull, 527 N.W.2d 402, 405 (Iowa App. 1994).
IV. Merits. Plaintiffs argue Iowa Rule of Civil Procedure 69(e) should not apply to cases such as theirs where they sought to amend the name of the plaintiff rather than the name of the defendant. Rule 69(e) provides, in relevant part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Iowa R. Civ. P. 69(e). This rule applies to both amendments changing parties and amendments correcting the names of parties. Porter v. Good Eavespouting, 505 N.W.2d 178, 181 (Iowa 1993); Grant v. Cedar Falls Oil Co., 480 N.W.2d 863, 866 (Iowa 1992). If all of the elements of the rule are met, the amendment will relate back to the date of the original pleading. Butler v. Woodbury County, 547 N.W.2d 17, 19 (Iowa App. 1996). While the clear language of this rule appears to apply only to defendants, our supreme court has held the rule also allows amendments that add plaintiffs. M-Z Enters., Inc. v. Hawkeye-Security Ins. Co., 318 N.W.2d 408, 411 (Iowa 1982). We therefore determine the district court was correct in applying rule 69(e) to this case.
In cases involving amendments to add plaintiffs, the requirement that the named defendants received sufficient notice of the amended petition during the statute of limitations period applies. Ezzone v. Riccardi, 525 N.W.2d 388, 399-400 (Iowa 1994). Although it is unclear from the record the exact date Marco received notice of the amended petition, he did not receive notice of the original petition until January 9, 1999, seventeen days after the expiration of the statute of limitations. We logically assume he received notice of the amended petition some date after January 9, 1999, and after the statute of limitations period had run. In any event, Marco did not receive the required notice of the amended petition within the period provided by law for commencing the action against him and therefore, the amend
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