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Rottinghaus v. Lincoln Savings Bank

Court of Appeals of Iowa

May 1, 2019

JOHN E. ROTTINGHAUS and DESSIE ROTTINGHAUS, Plaintiffs-Appellants,
v.
LINCOLN SAVINGS BANK, FIDUCIARY OF THE ESTATE OF SANDRA R. FRANKEN, Defendant-Appellee.

          Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         John and Dessie Rottinghaus appeal from the district court's order granting the estate's motion for summary judgment.

          Larry J. Thorson of Ackley, Kopecky & Kingery, LLP, Cedar Rapids, for appellant.

          Mark A. Roberts and Jared F. Knight of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.

          Vaitheswaran, Judge.

         We must decide whether the district court erred in concluding a probate claim was barred by a ten-year deadline governing interests in or claims to real estate.

         The facts are essentially undisputed. In 1973, John and Dessie Rottinghaus sold real estate to James and Sandra Kipp. The deed contained the following "right-of-first-refusal" provision:

Grantees hereby agree that they will not sell or otherwise convey the premises described above to any person other than grantors without first giving grantors the opportunity to purchase the premises at a price equal to any bona fide offer to purchase the premises made by any other person. In the event any person offers to purchase the said premises from the grantees, the grantees shall notify the grantors immediately and grantors shall have fifteen (15) days to purchase the property at the same price as offered.

         Sandra Kipp, also known as Sandra Franken, eventually became the sole owner of the property. After she died, her estate sold the property to a third party. The sale took place in 2016.

         The Rottinghauses filed a probate claim asserting the estate sale amounted to a breach of the right of first refusal contained in their 1973 contract with the Kipps. The estate moved for summary judgment, relying in part on Iowa Code section 614.17A (2017). That provision states, "[A]n action shall not be maintained in a court, either at law or in equity, in order to recover or establish an interest in or claim to real estate if . . . [t]he action is based upon a claim arising more than ten years earlier or existing for more than ten years."[1] Following a hearing, the district court granted the summary judgment motion.

         On appeal, the Rottinghauses contend (1) section 614.17A was not "timely raised as a defense," (2) the estate was not "a proper party" to raise section 614.17A as a defense, and (3) the language of sections 614.17A and 614.24 does not "bar the action by the claimants."

         Beginning with the timeliness issue, the Rottinghauses correctly assert "[d]efendants have a duty to plead the statute of limitations if they wish to rely on it." Porter v. Good Eavespouting, 505 N.W.2d 178, 182 (Iowa 1993). Allowable pleadings are "a petition and an answer, a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim, a cross-petition, if a person who was not an original party is summoned . . ., and an answer to cross-petition, if a cross-petition is served." Iowa R. Civ. P. 1.401. A motion "is not a 'pleading.'" Iowa R. Civ. P. 1.431.

         That said, a "defendant may first raise an affirmative defense in a motion for summary judgment as long as the plaintiff is not prejudiced." McElroy v. State,637 N.W.2d 488, 497 (Iowa 2001). Indeed, summary judgment motions have routinely served as the vehicle for submitting statute of limitations defenses. See, e.g., Wunschel v. IDA Holding Co.,407 N.W.2d 341, 343 (Iowa 1987) (affirming denial of statute-of-limitations defense raised in summary judgment motion); Jacobson v. Union Story Tr. & Sav. Bank,338 N.W.2d 161, 164 (Iowa 1983) ("[T]he trial court ...


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