Estate of Dyer v. Krug

• Decision Date: 24 May 1995
• Docket Number: No. 93-1907,93-1907
• Citation: 533 N.W.2d 221
• Parties: ESTATE OF Olive Iona DYER, Deceased, By Patricia Lirot, Her Daughter and Administrator, Appellant, v. Glenn C. KRUG, D.L. Manlove, and Alan P. Skora, Defendants, Davenport Medical Center, Inc. d/b/a Davenport Medical Center, Appellee.
• Court: Iowa Supreme Court

Page 221

533 N.W.2d 221

ESTATE OF Olive Iona DYER, Deceased, By Patricia Lirot, Her Daughter and Administrator, Appellant, v. Glenn C. KRUG, D.L. Manlove, and Alan P. Skora, Defendants Davenport Medical Center, Inc. d/b/a Davenport Medical Center, Appellee.

No. 93-1907.

Supreme Court of Iowa.

May 24, 1995.

Glenn L. Norris and George F. Davison, Jr., of Hawkins & Norris, Des Moines, and Norman D. Tucker of Sommers, Schwartz, Silver & Schwartz, Southfield, MI, for appellant.

Samuel S. McHard and Stephen T. Fieweger of Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., Rock Island, IL, for appellee.

Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and TERNUS, JJ.

TERNUS, Justice.

Patricia Lirot filed this action on behalf of the plaintiff, the estate of Olive Iona Dyer, seeking damages for the wrongful death of Dyer. Lirot sued in her capacity as the purported administrator of Dyer's estate and as Dyer's daughter. In sustaining a motion to dismiss, the district court ruled that Lirot had not been appointed the legal representative of the estate and had no standing as the decedent's daughter to file a wrongful death claim for the estate. We agree with the trial court and affirm the dismissal of the estate's petition.

I. Background Facts and Proceedings.

Olive Dyer died testate on October 21, 1991. Her last will and testament was admitted to probate several days later. Donna Sue Brees was appointed the executor of Dyer's estate.

On March 10, 1993, the executor filed her final report, advising the court that the estate could be closed. The executor reported that the sole beneficiaries under the will were Lirot, Brees, and Donald Robert Dyer III. The report does not mention a wrongful death claim. The court ordered the estate closed on March 30, 1993.

On October 7, 1993, Lirot filed this action for the estate against the defendants, Glenn C. Krug, D.O., D.L. Manlove, D.O., Alan P. Skora, D.O., Davenport Medical Center and "other persons whose identities are as yet not known to plaintiff." She claimed that the negligent acts of the defendants caused Dyer's death.

Lirot alleged in the petition that she brought this action as the decedent's "daughter and administrator." She also alleged that she had filed a petition in the Scott County District Court to reopen the Dyer estate for "purposes of investigating, preparing and prosecuting claims arising from" Dyer's death.

On October 20, 1993, the statute of limitations on Dyer's wrongful death claim expired.

Subsequently, on November 15, 1993 and before answering the petition, the appellee, Davenport Medical Center, filed a motion to dismiss alleging that Lirot did not have the capacity to bring the wrongful death action for the estate and that the statute of limitations had now run. See Iowa R.Civ.P. 104(b) (authorizing motion to dismiss for failure to state a claim upon which relief can be granted). Both parties supplemented the record with documents from the probate file. Neither party objected to this procedure.

The district court granted the medical center's motion to dismiss. We granted Lirot's application for interlocutory review.

II. Standard of Review.

Our review of a ruling on a motion to dismiss is limited to correction of errors at law. Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994). Any decision to sustain or overrule a motion to dismiss must rest on legal grounds. Id.

III. Consideration of Matters Outside the Pleadings.

The medical center supported its motion to dismiss with a copy of the docket entries in the probate file and the probate court's order closing the estate. Similarly, Lirot attached a copy of the executor's final report (without exhibits) to her resistance to the motion to dismiss. Neither the parties nor the district court appeared to be concerned by the consideration of matters extraneous to the pleadings in disposing of the medical center's motion.

Nevertheless, we point out that a motion to dismiss is directed to the pleadings and therefore, facts outside the pleadings should not be considered. Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 310 (Iowa 1982). When the parties want to rely on facts not contained in the pleadings, the more appropriate procedure to follow is that outlined for summary judgments. Id. at 311 (citing Iowa R.Civ.P. 237-240).

Despite these general principles, we found it proper in Troester for the district court to consider facts extraneous to the pleadings where those facts arose after the petition was filed and were undisputed by the parties and where the issue raised in the motion was the plaintiff's capacity to sue. Id. We acted similarly in Berger v. General United Group, Inc., 268 N.W.2d 630 (Iowa 1978). There we considered facts outside the pleadings in reviewing the grant of a motion to dismiss because the parties did not object to the district court's consideration of those facts and the issues related to the plaintiff's ability to bring the suit. Berger, 268 N.W.2d at 634-35. The Berger and Troester cases can be contrasted with Warford v. Des Moines Metropolitan Transit Authority, 381 N.W.2d 622 (Iowa 1986). In Warford, we refused to consider facts not found in the petition because the parties had no notice that the district court intended to rely on extraneous facts until they received the court's ruling and because the issue raised in the motion was whether the petition stated a claim upon which relief could be granted. Warford, 381 N.W.2d at 624.

We will reluctantly consider the extraneous facts here for three reasons. First, the parties relied on the materials from the probate file in their briefing and submission of this case to the district court and on appeal. Second, the materials from the probate file generally confirm facts that are already apparent from the allegations of the petition. Those facts are that at the time the petition was filed the estate had been closed and not reopened. The only new facts added by these materials are the failure of the executor to expressly dispose of the estate's wrongful death claim and Lirot's status as one of the beneficiaries under the will. However, as we discuss below, these additional facts are not determinative of Lirot's capacity to sue on behalf of the estate anyway. Finally, we consider the additional facts because the issue raised here, as in Troester, is the plaintiff's capacity to sue rather than the adequacy of the petition to state a claim for relief. Despite our minimal consideration of extraneous facts, we note, as we did in Berger, that our action should not be used as a basis to ignore the limited scope of a motion to dismiss as set forth in rule 104(b) and our cases interpreting it. See Berger, 268 N.W.2d at 635.

IV. Lirot's Capacity to Sue.

A. Governing legal principles. A party must have the capacity to sue in order to commence and maintain a lawsuit. Huffey v. Lea, 491 N.W.2d 518, 522 (Iowa 1992); Dumbaugh v. Cascade Mfg. Co., 264 N.W.2d 763, 765 (Iowa 1978). Here Lirot claims she has the capacity to bring this wrongful death action because she is an assignee of or successor in interest to the executor of the estate. Lirot argues that upon the closing of the estate, the wrongful death claim vested by operation of law in the heirs and beneficiaries of Dyer. As one of those heirs and beneficiaries, she claims the right to prosecute this wrongful death action. Lirot makes the alternate argument that the district court should have given her time to reopen the estate and be appointed the administrator. ¹

In considering Lirot's arguments, we begin with a review of the relevant law. The power to maintain a wrongful death action is entirely statutory. Troester, 328 N.W.2d at 312. Iowa Code section 611.20 (1993) preserves any claim a decedent has prior to death. This claim expands upon death to include damages resulting from the wrongful death. Id.

Iowa Code section 611.22 provides that an action within the scope of section 611.20 "may be brought ... by ... the legal representatives or successors in interest of the deceased." We have consistently held that the right to recover wrongful death damages vests exclusively in the estate representative. Troester, 328 N.W.2d at 312 (citations omitted). However, we have also recognized that an estate representative may assign a wrongful death claim. Id. (citations omitted). In addition, an assignment of a wrongful death claim may occur by operation of law under principles of subrogation. Id. (citation omitted). In cases of complete assignment or subrogation, the claim must be pursued in the name of the assignee or subrogee. Archibald v. Midwest Paper Stock Co., 158 N.W.2d 739, 743 (Iowa 1968) (where party has assigned his entire claim to another, the assignor possesses no claim upon which relief can be granted and is not the real party in interest).

B. Capacity as administrator. We first address Lirot's assertion that she should have been allowed time to reopen the estate and be appointed the administrator before the court ruled on the medical center's motion to dismiss. We think that these events would not have assisted Lirot, even if they had occurred before a ruling on the motion to dismiss.

In Pearson v. Anthony, 218 Iowa 697, 700, 254 N.W. 10, 12 (1934), we held that a plaintiff lacked capacity to bring an action for an estate when the plaintiff was not the administrator nor the executor of the estate when the action was filed. We further held that the plaintiff's subsequent appointment as administrator did not relate back to the filing of the wrongful death action, thereby retroactively establishing the capacity to sue. Pearson, 218 Iowa at 703, 254 N.W. at 13.

In Pearson, the decedent's wife filed a wrongful death action alleging that she was the administratrix of her husband's estate. Id. at 698, 254 N.W. at 11. More than a year later and more than two years after her husband's death, she was appointed the administratrix of the estate. Id. We...