Turner v. Thorp Credit, Inc., 2--56544

• Decision Date: 16 April 1975
• Docket Number: No. 2--56544,2--56544
• Citation: 228 N.W.2d 85
• Parties: Thomas R. TURNER, Jr., and Roberta M. Turner, Appellants, v. THORP CREDIT, INC., and Steven Walters, Appellees.
• Court: Iowa Supreme Court

Page 85

228 N.W.2d 85

Thomas R. TURNER, Jr., and Roberta M. Turner, Appellants, v. THORP CREDIT, INC., and Steven Walters, Appellees.

No. 2--56544.

Supreme Court of Iowa.

April 16, 1975.

Ronald A. Riley, Des Moines, for appellants.

Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for appellees.

Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and HARRIS, JJ.

MOORE, Chief Justice.

Plaintiffs Thomas R. Turner, Jr. and Roberta M. Turner (Turners) appeal trial court's dismissal of their damage action against defendants Thorp Credit, Inc. (Thorp) and Steven Walters (Walters).

On April 5, 1973, Turners filed their three-division petition seeking damages arising out of defendants' alleged wrongful attachment of plaintiffs' property.

Division I alleged: (1) on about March 19, 1971 Walters, an agent of Thorp, entered an agreement with Thomas R. Turner, Jr. to extend time for payment of an installment due March 20, 1971 on a note executed by the Turners which was held by Thorp; (2) Thorp had waived right to timely payments on the note by continued acceptance of late payments; (3) on April 5, 1971 Walters caused an action (Equity No. 20775) to be filed in Madison County District Court wherein Thorp sought the issuance of a writ of attachment against property owned by the Turners; (4) on about April 6, 1971 a writ of attachment was executed on the Turners' property being used by Thomas R. Turner, Jr. in his tree removal business; (5) the issuance and execution of the writ of attachment was in violation of Turner's due process rights and in breach of the March 19, 1971 oral agreement; (6) as a result of the breached oral agreement Thomas R. Turner, Jr., was forced to breach one contract and was unable to fulfill another, both of which were held by his tree removal business, was deprived of the use of the attached property and income derived therefrom, was subjected to public humiliation and loss of credit rating in the community, was and continues to be subjected to mental pain and anguish and humiliation, was and continues to be deprived of income and was subjected to lawsuits by creditors who would have been paid from the proceeds of the breached and subsequent contracts; and (7) because of the foregoing Roberta M. Turner lost her credit rating in the community and was and continues to be subjected to mental pain, anguish and humiliation.

Turners further alleged and demanded $75,759.52 actual and $50,000 exemplary damages for Thomas R. Turner, Jr. and $25,000 actual and $25,000 exemplary damages for Roberta M. Turner.

In division II Turners alleged: (1) Thorp and Walters intentionally, wrongfully, maliciously and tortiously interfered with preexisting contracts held by Thomas R. Turner, Jr. in his tree removal business; (2) this contract interference deprived Thomas R. Turner, Jr. of the ability to enter any future contracts of like nature and caused the injuries described in (6) above; and (3) as a result of this contract interference Roberta M. Turner received the same injuries described in (7) above. Their allegations and demand for damages were repeated.

Division III alleged: (1) Thorp and Walters wrongfully attached and secreted plaintiffs' property, causing the injuries outlined in (6) above; and (2) Thorp and Walters negligently cared for the property after attachment, causing a decline in the value of the property. They repeated their allegations and demand for damages.

On May 15, 1973 defendants Thorp and Walters filed a three-division motion to dismiss. They attached three exhibits to their motion. Division I of the motion asserted the facts alleged in the petition showed plaintiffs were not entitled to any relief since the causes of actions pleaded therein should have been pleaded as compulsory counterclaims under rule 29, Rules of Civil Procedure in the April 5, 1971 equity action referred to in Turners' petition. Division II of defendants' motion to dismiss asserted Turners' claims were barred on the basis of estoppel. Division III contended Turners' actions were barred on the basis of an alleged compromise and settlement.

On May 29, 1973 Turners filed their resistance to defendants' motion to dismiss. It denied the many new and affirmative allegations of the dismissal motion. In addition, plaintiffs asserted their causes of action were not compulsory counterclaims in the prior equity action since they were not 'then matured' under rule 29, R.C.P. and further alleged there had been no final judgment on the merits in the equity action.

June 1, 1973 trial court entered the following order: 'The defendants' motions to dismiss are sustained and plaintiffs' petition is dismissed at plaintiffs' costs.'

Plaintiffs-appellants assert the trial court erred in sustaining defendants' motion to dismiss. They attack the court's ruling on five grounds: (1) the petition did state facts sufficient to show plaintiffs were entitled to relief; (2) defendants' motion failed to point out the deficiency of plaintiffs' petition; (3) plaintiffs' claims were not compulsory counterclaims in the prior equity action since they had not matured; (4) plaintiffs' claims did not arise out of the same transaction or occurrence involved in Thorp's prior equity action; and (5) it was error to dismiss plaintiffs'...