Pride v. Peterson, 53628

• Decision Date: 13 January 1970
• Docket Number: No. 53628,53628
• Citation: 173 N.W.2d 549
• Parties: Mary PRIDE, also known as Mattie Pride, Appellant, v. Roger F. PETERSON, Appellee.
• Court: Iowa Supreme Court

Page 549

173 N.W.2d 549

Mary PRIDE, also known as Mattie Pride, Appellant, v. Roger F. PETERSON, Appellee.

No. 53628.

Supreme Court of Iowa.

Jan. 13, 1970.

Hanson & Bormann, Emmetsburg, for appellant.

Beecher, Buckmaster, Beecher, Holmes & Lindeman and Butterfield, Hultman, Ball & Beekmen & Peterson, Waterloo, for appellee.

MASON, Justice.

This is a law action for damages arising out of an alleged real estate transaction. Plaintiff Mary Pride originally owned two parcels of land in Waterloo's urban renewal area. Sometime before January 1, 1963, she started negotiating with the urban renewal board to purchase her properties. About this time she retained defendant Roger F. Peterson to represent her as her attorney in dealings with the board.

June 21, 1963, Mrs. Pride was injured and hospitalized. July 11 she signed a power of attorney appointing Peterson her attorney in fact. He had the instrument recorded July 12 in the Black Hawk County recorder's office. July 15 defendant made a written offer of sale of plaintiff's two properties to Waterloo for $9700 which the city accepted July 17. August 8 Peterson signed and had recorded a deed conveying plaintiff's properties to the city.

Plaintiff's petition was filed August 12, 1968. However, she served defendant August 5 with an original notice with copy of the petition attached asking money damages only, alleging defendant as her attorney fraudulently obtained a power of attorney from her and used it to convey her properties to the city under its urban renewal program for a price considerably less than an offer she had refused during negotiations had before her hospitalization. Plaintiff alleged she did not actually become aware of the sale until August 11, 1963, two days after her release from the hospital; at no time prior to August 8 did defendant advise or inform her of the transaction.

Defendant moved to dismiss plaintiff's petition on the ground it showed on its face it was based upon an alleged fraud which arose more than five years before commencement of the action and was therefore barred by chapter 614, Code, 1966.

Sections 614.1 and 614.1(4), Code, as amended in 1967, provide:

'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: * * * on ground of fraud in cases heretofore solely cognizable in a court of chancery * * * within five years, * * *.'

Rule 49, Rules of Civil Procedure, provides:

'Tolling limitations. For the purpose of determining whether an action has been commenced within the time allowed by statutes for limitation of actions, whether the limitation inheres in the statutes creating the remedy or not, the delivery of the original notice to the sheriff of the proper county with the intent that it be served immediately (which intent shall be presumed unless the contrary appears) shall also be deemed a commencement of the action.'

The trial court sustained defendant's motion and plaintiff's appeal challenges the correctness of this ruling. She asserts the court erred in sustaining defendant's motion because (1) under the facts her action is not barred by the statute of limitations and (2) the statute was tolled until the filing of the deed August 8, 1963. Plaintiff urges this second assignment as an alternative in the event we do not find her first one requires reversal.

I. Where the bar of the statute of limitations affirmatively appears on the

Our rule 104(b) is substantially identical a 'failure to state a claim on which any relief can be granted'. Liken v. Shaffer, D.C.Iowa, 64 F.Supp. 432, 446. See also Rappeport v. Flitcroft, 90 N.J.Super. 578, 579, 218 A.2d 873, 874, where the court considered the New Jersey rule based on Rule 12(b)(6), Federal Rules of Civil Procedure.

Our problem, inherent in plaintiff's first assignment, is whether the defense of limitations may ordinarily be raised by a motion to dismiss under the Iowa Rules of Civil Procedure.

In Iowa new rules of civil procedure were adopted effective July 4, 1943. Technical forms, including demurrers, are abolished (Rule 67); it is provided that when time is not material it need not be averred, but when material the date or duration of a continuous act must be alleged (Rule 92); any defense 'which admits the facts of the adverse pleading but seeks to avoid their legal effect' must be specially pleaded (Rule 101); every defense in bar or abatement must be made in the answer or reply (Rule 103) except as allowed by Rule 104 which provides that a failure to state a claim on which any relief can be granted may be raised by motion to dismiss. See Annot., 61 A.L.R.2d 300 (1958).

Rule 104, R.C.P., insofar as pertinent here provides:

'Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto, if one is required, or if none is required, then at the trial, except that:

'* * *.

'(b) Failure to state a claim on which any relief can be granted, may be raised by motion to dismiss such claim, filed before answer. * * *.'

The author in 1 Cook, Iowa Rules of Civil Procedure, Rev.Ed., 673, comments:

'This Rule is much like Federal Rule 12(b); though the list of matters allowable is by no means identical. Where the two do correspond, the federal decisions may be persuasive.'

Oiur rule 104(b) is substantially identical to Federal Rule 12(b)(6).

The rule does not use the term 'cause of action'. It is the failure to state a 'claim on which any relief can be granted', and not failure 'to state a cause of action', which is tested by the rule. It has been suggested 'the only purpose that can be served in noting the distinction is perhaps to emphasize that the old technical rules of pleading no longer prevail'. 1A Barron and Holtzoff, Federal Practice and Procedure (Rules Edition, Revised by Charles Alan Wright), section 356.

The author of the annotation in 61 A.L.R.2d, supra, at 303 states 'the majority of the cases which have considered the question under the Federal Rules of Civil Procedure hold that the defense (statute of limitations) may be raised' by motion to dismiss. On the other hand at 327 the author states, 'A number of cases, under the Federal Rules or more or less similar state practice, have held that a motion to dismiss is not a proper method of raising the defense of limitations.' Cases from jurisdictions supporting one or the other of these positions are collected in the annotation and Later Case Service.

The rationale of state jurisdictions applying strictly the rule that the bar of limitations is an affirmative defense to be specially pleaded and is not available on motion to dismiss is expressed in the following language.

In Davis v. Bonebrake, 135 Colo. 506, 512, 313 P.2d 982, 986, we find:

'The plaintiff need not anticipate the assertion of the statute of limitations and therefore negate its effect in her complaint, for the defendants may waive such defense. 'The statute of limitations is not ground for motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b), Colo.Rules of Civil Procedure, since under Rule 8(c) that is a defense which must be set forth affirmatively by answer. Baker v. Sisk, D.C., 1 F.R.D. 232. Neither is it a basis for dismissal on motion on the ground that it appears from the complaint that the claim accrued more than six years before the commencement of the action in this state, for the reason that in the absence of an affirmative defense based on the statute such defense is waived, and the assertion or waiver of the defense can only be determined from the answer. Furthermore, even if pleaded, the running of the statute may have been tolled, and plaintiff in his complaint is not required to anticipate the defense.' Smith v. Kent Oil Co., 128 Colo. 80, 261 P.2d 149, 150. See O'Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867.'

Davis v. Bonebrake, supra, was cited with approval in McPherson v. McPherson, 145 Colo. 170, 171, 358 P.2d 478, 479.

In Hough v. Menses, Fla., 95 So.2d 410, 412, the court said:

'Grounds (2) (res judicata) and (4) (the statute of limitations barred plaintiff from recovery) of the motion to dismiss are affirmative defenses which are not properly raised on motion to dismiss, but should be raised in an answer. See Fla. Rules Civ.Proc. rules 1.8(d) and 1.11(b), 30 F.S.A. The reason for this is that the plaintiff should not have the burden of anticipating a defense and then overcoming it in his initial pleading. Akin v. City of Miami, Fla., 1953, 65 So.2d 54, 37 A.L.R.2d 691 and Tuggle v. Maddox, Fla.1952, 60 So.2d 158. Furthermore the burden is on the defendant to prove his affirmative defenses, which cannot be done in proceedings on a motion to dismiss.'

In 1963 Hawkins v. Bay County Publishers, Inc., Fla.App., 148 So.2d 561, 564, after citing Hough with approval, added '* * * it is specifically provided that the statute of limitations, when relied upon as a defense, shall be set forth affirmatively (30 F.S.A. Rules of Common Law). Rule 9(d). This method was purposely adopted to obviate the necessity of the initial pleader's setting forth that the statute had been waived or tolled and to dispel any existing uncertainty in the law on the subject. If the statute is affirmatively pleaded and such waiver or tolling is considered by the plaintiff to have counteracted its effect he may present the matter by a reply under rule 8(a). Of course, being an affirmative defense, the defendant may waive the statute by ignoring it.'

Some state jurisdictions require the defense of limitations to be pleaded in the responsive pleading even though it is apparent upon the face of the petition the action was not commenced within the time limited by law. See Hagen v. Altman, N.D., 79 N.W.2d 53, 59 and Johnson v. Wells-Lamson Quarry Co., 103 Vt. 475, 156 A. 681, 77 A.L.R. 492.

Federal Rule of Civil Procedure 8(c) provides that in pleading to a...