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Dickens v. Associated Anesthesiologists5/11/2005
Plaintiff-appellant Richard Dickens appeals from a ruling denying his request for an order nunc pro tunc and sustaining defendants' motion for summary judgment. AFFIRMED.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Plaintiff-appellant Richard Dickens, individually and as executor of the estate of Sharon Kenyon, appeals from a ruling denying his request for an order nunc pro tunc and sustaining defendants' motion for summary judgment dismissing his medical malpractice case alleging defendants were responsible for the death of his wife. We affirm.
I. Background Facts and Proceedings
On August 14, 2002, plaintiff filed a petition alleging the negligence of Dr. John Jabour and Nurse Anesthetist Rebecca Meyer was a proximate cause of the death of his wife. The petition also named Associated Anesthesiologists, P.C. (Associated), the employer of Jabour and Meyer, as defendant.
Associated was served an original notice and filed a timely answer to the petition. Neither Jabour nor Meyer was served with an original notice of the suit and they filed a motion to dismiss. The motion was sustained and the case against them was dismissed "with prejudice" on February 21, 2003.
Associated filed a motion for summary judgment on July 15, 2003, contending: (1) Jabour and Meyer were dismissed with prejudice, (2) their dismissal served as an adjudication on the merits such that Jabour and Meyer were not liable to Dickens, and (3) because the liability of Associated's agents, Jabour and Meyer, was extinguished by the dismissal, Associated's liability was likewise extinguished.
Dickens resisted the motion for summary judgment and filed a motion for an order nunc pro tunc on December 9, 2003, contending the dismissal of Jabour and Meyer for failure to effectuate timely service pursuant to Iowa Rule of Civil Procedure 1.302(6) (2002) could only be granted "without prejudice," and the February 21, 2003, dismissal therefore contained an evident mistake which should be corrected through an order nunc pro tunc.
After a hearing the district court granted Associated's motion for summary judgment and denied Dickens' motion for an order nunc pro tunc. The court reasoned that nunc pro tunc orders are a viable means of correcting clerical errors, but they should not be employed to "alter judicial conclusions." Moreover, the court was hesitant to exercise its discretion to revise the dismissal order entered some nine months earlier even if the phrase "with prejudice" was not intended.
Dickens claims the district court erred in (1) granting summary judgment in favor of Associated, and (2) denying his motion for order nunc pro tunc.
We first address plaintiff's claim that his request for a nunc pro tunc order should have been granted.
We review the denial of a motion for order nunc pro tunc for correction of errors at law. Freeman v. Ernst & Young, 541 N.W.2d 890, 893 (Iowa 1995); Papenheim v. Lowell, 530 N.W.2d 668, 671 (Iowa 1995).
What appellant is asking for through a nunc pro tunc order is to correct an error at law made by the district court in dismissing the matter with prejudice because the appellant argues the dismissal was not in accord with Iowa Rule of Civil Procedure 1.302(6) (2002).
An order nunc pro tunc is used to correct clerical errors. Iowa v. Naeyoks, 637 N.W.2d 101, 103 (Iowa 2001). An error is clerical if it is not the product of judicial reasoning and determination. Iowa v. Hess, 533 N.W.2d 525, 527 (Iowa 1995). A nunc pro tunc order is not for the purpose of correcting judicial thinking, a judicial conclusion, or a mistake of law. State
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