JOHN E. ROTTINGHAUS and DESSIE ROTTINGHAUS, Plaintiffs-Appellants,
LINCOLN SAVINGS BANK, FIDUCIARY OF THE ESTATE OF SANDRA R. FRANKEN, Defendant-Appellee.
from the Iowa District Court for Black Hawk County, David P.
and Dessie Rottinghaus appeal from the district court's
order granting the estate's motion for summary judgment.
J. Thorson of Ackley, Kopecky & Kingery, LLP, Cedar
Rapids, for appellant.
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.
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.
facts are essentially undisputed. In 1973, John and Dessie
Rottinghaus sold real estate to James and Sandra Kipp. The
deed contained the following
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.
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.
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." Following a hearing, the district court
granted the summary judgment motion.
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."
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.
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 ...