Neill v. Western Inns, Inc., 97-1462

Decision Date03 June 1999
Docket NumberNo. 97-1462,97-1462
PartiesRichard R. NEILL and Donna Neill, Appellants, and Doris M. Swift, Individually and as Administrator of the Estate of Edwin H. Swift, Deceased, Plaintiff, v. WESTERN INNS, INC. d/b/a Ramada Inn, Appellee.
CourtIowa Supreme Court

Douglas H. Napier of Napier, Wolf & Napier, Fort Madison, for appellants.

Richard J. Sapp and John B. Tuffnell of Nyemaster, Goode, Voights, West, Hansel & O'Brien, Des Moines, for appellee.

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

TERNUS, J.

Plaintiff, Richard Neill, contracted Legionnaires' disease, allegedly while staying at a hotel operated by the defendant, Western Inns, Inc. He filed a joinder in the present lawsuit, which had been commenced by the estate of another hotel patron who had died of the same disease. The district court sustained Western Inns' motion to dismiss the joinder, ruling that the attempted joinder was improper. Neill appeals the district court's decision, claiming that his joinder in the pending litigation was appropriate and that, in the event the joinder was not permissible, dismissal was not the proper remedy.

We agree with the district court that Neill's unilateral joinder was improper, but we think dismissal was not necessarily warranted for this reason. Because Neill's joinder was essentially a petition, the district court should have considered the legal sufficiency of Neill's pleading as a petition in deciding whether to sustain Western Inns' motion to dismiss. Therefore, we reverse and remand for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Neill contracted Legionnaires' disease several weeks after staying at a hotel operated by Western Inns. He believed that the defendant's hotel was the source of the bacteria causing his illness.

Other individuals also allegedly contracted the same disease at the defendant's hotel. One of these individuals was Edwin Swift. Swift's widow, as administrator of his estate, commenced the present lawsuit against Western Inns alleging that Western Inns' negligence was a proximate cause of Swift's death from Legionnaires' disease.

Seven months after Swift's lawsuit was filed, Neill filed a document in that action entitled "Joinder of Plaintiffs Richard R. Neill and Donna Neill." (Throughout the remainder of this opinion we will refer to the plaintiffs jointly as Neill.) The substance of this joinder was the same as a typical petition, setting forth in separate counts Neill's claims against Western Inn and praying for money damages. Neill did not obtain leave of court, nor did he obtain the consent of the original parties.

Swift's claim against Western Inns was eventually settled and the estate's lawsuit was dismissed. Thirty-three days after this dismissal and 112 days after the joinder was filed, Neill served a copy of the joinder on Western Inns. In response, Western Inns filed a motion to dismiss, alleging four reasons in support of its motion: (1) the unauthorized and unilateral joinder was not an allowable method to commence an action under Iowa Rule of Civil Procedure 48, which requires that an action be commenced by the filing of a petition; 1 (2) the attempted joinder was ineffectual because there was no order of the court permitting it nor did the original parties consent to it; (3) the attempted joinder must be dismissed because the underlying lawsuit had been dismissed; and (4) Neill's delay in serving the joinder was presumptively abusive, warranting dismissal. The district court granted the motion to dismiss, ruling that the attempted joinder was improper under the rules governing joinder. This appeal followed.

II. Scope of Review.

We review the district court's interpretation of the rules governing joinder for correction of errors of law. Cf. State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997) (reviewing district court's interpretation of rule of criminal procedure for errors at law); State ex rel. Shoars v. Kelleher, 539 N.W.2d 189, 190 (Iowa 1995) (reviewing district court's interpretation of child support guidelines on error). We review the district court's dismissal order under the same standard. See Estate of Dyer v. Krug, 533 N.W.2d 221, 222 (Iowa 1995).

III. Was the Attempted Joinder Proper?

The initial issue to be resolved is whether the district court correctly determined that Neill's attempt to join in the Swift lawsuit without obtaining leave of court or consent of the parties involved was improper. Neill relies on Iowa Rule of Civil Procedure 23, which provides for the joinder of multiple plaintiffs, as authority for his action:

Any number of persons who claim any relief, jointly, severally or alternatively, arising out of or respecting the same transaction, occurrence or series of transactions or occurrences, may join as plaintiffs in a single action, when it presents or involves any question of law or fact common to all of them.

He points out that this rule does not require a joining party to obtain leave of court or the consent of the original parties to the lawsuit. We think the explanation for the failure of rule 23 to include any procedure for joining a pending lawsuit is that the rule does not contemplate a unilateral joinder by a person not a party to the suit. This conclusion is supported by the language of rule 23 and the scope of other rules of civil procedure that provide for the participation of a nonparty in a pending lawsuit.

We start with an examination of the language of rule 23, specifically the operative word "join." Black's Law Dictionary contains the following relevant definitions:

Join. To unite; to come together; to combine or unite in time, effort, action; to enter into an alliance.

Joinder. Joining or coupling together; uniting two or more constituents or elements in one; uniting with another person in some legal step or proceeding; union; concurrence.

....

Joinder of parties. The act of uniting as parties to an action all persons who have the same rights or against whom rights are claimed, as either co-plaintiffs or co-defendants.

Black's Law Dictionary 836 (6th ed.1990) (emphasis added). To unite is "to join in an act; to concur; to act in concert." Id. at 1533 (emphasis added). The noun "concert" is defined as "agreement in a design or plan: union formed by mutual communication of opinions and views." Webster's Third New International Dictionary 470 (unabr. ed.1993) (emphasis added). The verb "concert" has a similar meaning: "to plan together." Id. Thus, "[a] person is deemed to act in concert when he acts with another to bring about some preconceived result." Black's Law Dictionary 289 (emphasis added).

From these definitions, it appears that the act of joinder contemplates a concerted effort on the part of more than one individual, rather than the unilateral action of one person. See Thompson v. Boggs, 33 F.3d 847, 858 (7th Cir.1994) (holding analogous federal rule did not authorize the filing of a motion to join by a nonparty to the lawsuit); Parker- Hannifin Corp. v. Samuel Moore & Co., 436 F.Supp. 498, 500 (N.D.Ohio 1977) (same). Thus, we think rule 23 governs situations where individuals come together and, if the requirements of the rule are met, mutually agree to join their claims together in one lawsuit.

This court's interpretation of Iowa Rule of Civil Procedure 24, an analogous rule governing the permissive joinder of defendants, supports this conclusion. 2 When a plaintiff seeks to join an additional defendant after the original defendant has answered, the plaintiff must seek leave of court to amend the petition under Iowa Rule of Civil Procedure 88. 3 See West v. Hawker, 237 N.W.2d 802, 806 (Iowa 1976). In West, we held that rules 24 and 88 must be read together so that defendants who have answered will have an opportunity "to object to amendments made which might affect their preparation for trial." Id. We observed that even an amendment adding parties might "affect such matters as decisions regarding cross-petitions or cross-claims, the scheduling of trial, and trial strategy." Id.

This rationale is equally applicable to rule 23 governing the joinder of plaintiffs. Thus, rule 23 and rule 88 must also be read together to require a plaintiff seeking to join a new plaintiff, after the defendant has answered, to obtain leave of court or the consent of the defendant. In this way, the affected defendant will have the opportunity to object. Clearly, this procedure is not available to a nonparty because rule 88, allowing the filing of amendments, applies only to a "party." See Iowa R.Civ.P. 88.

The prohibition of unilateral joinder by nonparties is consistent with the general rule that

[p]ersons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask [for] relief in relation to the matters involved, they must either contrive to obtain the status of parties in the suit or they must institute an independent suit.

59 Am.Jur.2d Parties § 8, at 388 (1987) (emphasis added). Our rules provide for both options.

Under Iowa Rule of Civil Procedure 75 a nonparty may obtain the status of a party through the process of intervention:

Any person interested in the subject matter of the litigation, or the success of either party to the action, or against both parties, may intervene at any time before trial begins, by joining with plaintiff or defendant or claiming adversely to both.

Rule 76 requires that the person seeking to intervene must file a petition and have copies of it served by the clerk on each party against whom the intervenor asserts a right. The party served then has seven days to move or plead to the petition of intervention. See Iowa R.Civ.P. 76. These rules plainly govern the procedure for the inclusion of a nonparty in a pending lawsuit. See Black's Law Dictionary 820 (defining intervention as "[t]he...

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    • United States
    • United States State Supreme Court of Iowa
    • July 8, 1999
    ...of the relevant rules of civil procedure. Our review, therefore, is for correction of errors of law. See Neill v. Western Inns, Inc., 595 N.W.2d 121, 123 (Iowa 1999). B. Discussion. The plaintiff relies on Iowa Rule of Civil Procedure 200 to support his argument that the court has no author......
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