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VENARD v. WINTER11/23/1994
This legal malpractice case presents two questions. First, what statute of limitations governs this case? Second, can a plaintiff avoid the consequences of not designating experts within the time requirements of Iowa Code section 668.11 (1989) by voluntarily dismissing the action and refiling an identical one? The answer to the first question is that the five-year limitation period in Iowa Code section 614.1(4) governs this case. The answer to the second question is "yes."
We affirm that part of the district court ruling denying the defendant's motion to dismiss on the statute of limitations question. We reverse that part of the court's ruling sustaining the defendant's motion to dismiss on the voluntary dismissal question. We remand for further proceedings consistent with this opinion.
Michael Winter represented William Venard in an action to foreclose a mechanic's lien regarding improvements to Venard's property. The property was then sold at a sheriff's sale and was never redeemed within the one-year redemption period. See Iowa Code ยง 628.3. The last day for redemption was June 8, 1990.
On June 11, 1992, Venard sued Winter for legal malpractice. In his petition Venard alleged, among other things, the following: (1) pursuant to an oral agreement Venard employed Winter to represent him in the foreclosure action; (2) Venard had the money to redeem the property but Winter told him to wait until just before the expiration of the redemption period to do so; (3) through Winter's efforts, Venard and the party who purchased the property agreed that Venard would redeem the property before the expiration of the one-year period of redemption and that Venard would be notified to do so before then; and (4) despite Winter's continued representation of Venard, Winter did not take the necessary steps to complete the redemption of the property before the redemption period expired.
Winter answered in September and promptly began discovery by serving Venard with interrogatories. One of the interrogatories asked for the identification of expert witnesses. Venard designated his expert witnesses past the deadline in section 668.11 for designating them.
Later, Winter filed a motion for summary judgment. The motion alleged that Venard failed to comply with the time requirements for expert witness designation in section 668.11, and that without such witnesses he could not establish a prima facie case. Before the court could rule, Venard voluntarily dismissed his action pursuant to Iowa Rule of Civil Procedure 215.
Five days later, Venard filed this action. The petition is identical to the petition in the [524 NW2d Page 165]
first action with the exception that he now alleges additional theories. Those theories include (1) breach of contract, (2) constructive fraud, and (3) negligent misrepresentation.
Winter promptly filed a motion to dismiss the petition. The motion is based on two grounds. First, the present action is barred by the two-year statute of limitations in Iowa Code section 614.1(2). Second, the present action should be dismissed because Venard voluntarily dismissed the first action after he failed to designate expert witnesses within the time requirements of section 668.11.
The district court concluded that the five-year statute of limitations for unwritten contracts in Iowa Code section 614.1(4) applied and overruled Winter's first ground for dismissal. The court agreed as to Winter's second ground and sustained the motion. Venard appeals from the court's dismissal.
A district court's order sustaining or overruling a motion to dismiss does not depend on the court's discretion. The ruling
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