Neylan v. Moser, No. 85-1639

CourtUnited States State Supreme Court of Iowa
Writing for the CourtConsidered by REYNOLDSON; WOLLE
Citation400 N.W.2d 538
PartiesKathleen NEYLAN and Kevin Neylan, d/b/a Neylan Law Office, Appellees, v. Clifton MOSER and Hilda Moser, Carlys Moser and Laura Moser, Appellants.
Decision Date18 February 1987
Docket NumberNo. 85-1639

Page 538

400 N.W.2d 538
Kathleen NEYLAN and Kevin Neylan, d/b/a Neylan Law Office, Appellees,
v.
Clifton MOSER and Hilda Moser, Carlys Moser and Laura Moser, Appellants.
No. 85-1639.
Supreme Court of Iowa.
Feb. 18, 1987.

Page 539

James P. Hayes and Margaret T. Lainson of Meardon, Sueppel, Downer & Hayes, Iowa City, for appellants.

Patrick M. Roby and Douglas R. Oelschlaeger of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellees.

Considered by REYNOLDSON, C.J., and HARRIS, WOLLE, LAVORATO, and NEUMAN, JJ.

Page 540

WOLLE, Justice.

We label this appeal Moser IV because the underlying equity action involving purchase of farm real estate has been before us on three previous occasions. See Moser v. Thorp Sales Corp., 256 N.W.2d 900 (Iowa 1977) (Moser I); Moser v. Thorp Sales Corp., 312 N.W.2d 881 (Iowa 1981) (Moser II); Moser v. Thorp Sales Corp., 334 N.W.2d 715 (Iowa 1983) (Moser III). This appeal concerns the separate equity action filed by attorneys Kathleen and Kevin Neylan (Neylans) against members of the Moser family whom they represented in those earlier proceedings. Neylans brought the action to enforce their contingent fee agreement and impose an attorney fee lien on the real estate. Responding to the Neylans' claims, Mosers first denied that attorney fees were owed and subsequently requested permission to file a counterclaim alleging that the Neylans had committed malpractice through negligent handling of two of the Mosers' lawsuit claims. The district court determined that the proposed malpractice counterclaim would be barred by the applicable statute of limitations and therefore refused to allow the Mosers' motion to amend to assert the counterclaim. We reverse and remand.

I. Background Facts.

The parties quarrel over the law but not the facts pertinent to this appeal. No evidentiary hearing preceded the rulings here appealed. We sketch the factual background from the pleadings.

Mosers first employed the Neylans in 1972 to represent them in securing ownership to a farm they had purchased at auction in 1971. During the extended course of that litigation the Neylans filed numerous pleadings, tried the equity case both initially and following two subsequent remands, and presented all three appeals to this court. Neylans base their claim for attorney fees on a contingent fee agreement that was initially oral and later reduced to writing.

Neylans contend in this action that they first requested payment of attorney fees on April 10, 1978 when they secured possession of the farm for the Mosers following remand of Moser I. With issues remaining to be resolved on further appeal, Mosers and Neylans allegedly agreed to share the yearly income from the farm until final disposition of the litigation. When the underlying case had finally been put to rest following the remand of Moser III, however, Neylans commenced this equity action contending that Mosers had not paid what was owed under the contingent fee agreement.

Neylans filed this equity action on May 25, 1984, and Mosers initially answered on June 14, 1984, denying that fees were due and asserting several affirmative defenses. Almost seven months later, on January 7, 1985, Mosers sought permission to assert their two-count counterclaim for legal malpractice. They alleged that the Neylans had negligently failed to present sufficient evidence of damages caused by erosion of the farm land and deterioration of the buildings while they were out of possession of the farm (see Moser II, 312 N.W.2d at 899), and failed to file the affidavit for attorney fees required by Iowa Code section 625.24 (1981) (see Moser v. Thorp Sales Corp., 334 N.W.2d at 718-19). The proposed counterclaim was effectively disallowed when the district court sustained a special appearance filed by the Neylans and then denied the Mosers' motion to amend. The court held that the five-year limitation of Iowa Code section 614.1(4) was applicable to the counterclaim, then determined that the cause of action accrued when "Mosers discovered or should have discovered their alleged injury" more than five years before the motion to amend was filed.

We first address the Neylans' motion to dismiss based on mootness, then the district court's application of the statute of limitations, and finally the denial of the Mosers' motion to amend.

II. Neylans' Motion to Dismiss Appeal.

Neylans have moved to dismiss this appeal, asserting it is now moot because

Page 541

their claim for attorney fees has been tried to the court and resulted in a judgment which Mosers have paid. They contend:

A decision in favor of Mosers would result in their counterclaim being remanded to the district court as a counterclaim to an action which has been decided.

The only authority they cite, however, is State v. Wilson, 234 N.W.2d 140 (Iowa 1975), which is inapposite. In Wilson, we dismissed as moot a former prisoner's request to have work release privileges reinstated. Id. at 141. That case presented no justiciable controversy because the prisoner's release from jail had made the issue academic. Here, in contrast, judgment on the Neylans' cause of action does not necessarily make the Mosers' counterclaim academic. Claims or counterclaims may be disposed of by partial summary judgment or even tried separately, resulting in separate judgments in the same action. See Mason City Production Credit Association v. Van Duzer, 376 N.W.2d 882, 887 (Iowa 1985) (suggesting that a summary judgment court should stay execution on a partial summary judgment when counterclaim issues remain to be tried); Iowa R.Civ.P. 186 (court may order separate trial of any claim, counterclaim or cross-claim).

It is true that a party may waive its right to appeal by accepting the benefits of a decree. A party who accepts material and substantial benefits under a judgment or decree may not ordinarily challenge the provisions under which benefits are awarded. Johnson v. Johnson, 301 N.W.2d 750, 752 (Iowa 1981); In re Marriage of Abild, 243 N.W.2d 541, 542-43 (Iowa 1976). The party relying on...

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34 practice notes
  • Laird v. Blacker, No. S021074
    • United States
    • United States State Supreme Court (California)
    • May 7, 1992
    ...client's malpractice action even though trial counsel continued to represent plaintiff on appeal. (See, e.g., Neylan v. Moser (Iowa 1987) 400 N.W.2d 538, 542; Amfac Distribution Corp. v. Millar (Ariz.Ct.App.1983) 138 Ariz. 155, 673 P.2d 795; Bonanno v. Potthoff (N.D.Ill.1981) 527 F.Supp. 56......
  • RDH Communications, Ltd. v. Winston, No. 96-CV-143.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 18, 1997
    ...Ariz. 152, 673 P.2d 792 (1983); Semenza v. Nevada Med. Liab. Ins. Co., 104 Nev. 666, 765 P.2d 184 (1988) (citing Amfac); Neylan v. Moser, 400 N.W.2d 538 (Iowa 1987) While this court has rejected an exhaustion of appeals rule, see Knight, supra, 553 A.2d at 1234-36 & n. 2, we did so, in part......
  • Grunwald v. Bronkesh
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1993
    ...Pennsylvania law); Haghayegh v. Clark, 520 So.2d 58, 59 (Fla.App.1988); Diaz v. Piquette, 496 So.2d 239 (Fla.App.1986); Neylan v. Moser, 400 N.W.2d 538, 542 (Iowa 1987); Semenza v. Nevada Medical Liab. Ins. Co., 104 Nev. 666, 765 P.2d 184, 186 (1988). We recognize as well that inherent in a......
  • Grunwald v. Bronkesh
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 27, 1992
    ...claim ran from when appeal of underlying action decided, not at time trial court denied judgment of foreclosure.); Neylan v. Moser, 400 N.W.2d 538, 542-43 (Iowa 1987) (legal malpractice counterclaims accrued on date when appeals regarding factual issues behind such claims were decided); Sem......
  • Request a trial to view additional results
34 cases
  • Laird v. Blacker, No. S021074
    • United States
    • United States State Supreme Court (California)
    • May 7, 1992
    ...client's malpractice action even though trial counsel continued to represent plaintiff on appeal. (See, e.g., Neylan v. Moser (Iowa 1987) 400 N.W.2d 538, 542; Amfac Distribution Corp. v. Millar (Ariz.Ct.App.1983) 138 Ariz. 155, 673 P.2d 795; Bonanno v. Potthoff (N.D.Ill.1981) 527 F.Supp. 56......
  • RDH Communications, Ltd. v. Winston, No. 96-CV-143.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 18, 1997
    ...Ariz. 152, 673 P.2d 792 (1983); Semenza v. Nevada Med. Liab. Ins. Co., 104 Nev. 666, 765 P.2d 184 (1988) (citing Amfac); Neylan v. Moser, 400 N.W.2d 538 (Iowa 1987) While this court has rejected an exhaustion of appeals rule, see Knight, supra, 553 A.2d at 1234-36 & n. 2, we did so, in part......
  • Grunwald v. Bronkesh
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1993
    ...Pennsylvania law); Haghayegh v. Clark, 520 So.2d 58, 59 (Fla.App.1988); Diaz v. Piquette, 496 So.2d 239 (Fla.App.1986); Neylan v. Moser, 400 N.W.2d 538, 542 (Iowa 1987); Semenza v. Nevada Medical Liab. Ins. Co., 104 Nev. 666, 765 P.2d 184, 186 (1988). We recognize as well that inherent in a......
  • Grunwald v. Bronkesh
    • United States
    • New Jersey Superior Court – Appellate Division
    • February 27, 1992
    ...claim ran from when appeal of underlying action decided, not at time trial court denied judgment of foreclosure.); Neylan v. Moser, 400 N.W.2d 538, 542-43 (Iowa 1987) (legal malpractice counterclaims accrued on date when appeals regarding factual issues behind such claims were decided); Sem......
  • Request a trial to view additional results

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