from the Iowa District Court for Jasper County, Martha L.
plaintiff appeals the grant of summary judgment to an
attorney on her malpractice claims.
J. Mallory of Brick Gentry, P.C., West Des Moines, for
M. Boes and Janice M. Thomas of Bradshaw, Fowler, Proctor
& Fairgrave, P.C., Des Moines, for appellees.
by Doyle, P.J., and Tabor and Schumacher, JJ.
estate brokerage owner Geri Doyle split from her business
partner, Caren DeVoe. As part of DeVoe's buyout, Doyle
signed a covenant prohibiting her from competing in the real
estate business in Jasper County for ten years. When Doyle
joined a different real estate company and began advertising
properties in Jasper County, DeVoe reminded her of the
noncompete covenant. Doyle responded by seeking a declaratory
judgment that the noncompete clause was unenforceable. Doyle
also pursued malpractice claims against Mark Otto, the
attorney who drafted the covenant and alleged other tort
claims against the attorney and DeVoe. The district
court granted Otto's motion for summary judgment. We
uphold the grant of summary judgment but on a different
ground than embraced by the district court.
Facts and Prior Proceedings
2003, Doyle and DeVoe were real estate agents and broker
associates working for a company in Newton. After several
years, they decided to form their business. They opened Doyle
& DeVoe, LLC in 2005 and Doyle & DeVoe Properties,
LLC in 2010. In 2015, Doyle sold her interest in the
companies to DeVoe's husband, Philip Clevenger. Together,
the parties hired attorney Mark Otto to draft the purchase
agreement. Otto previously had represented both parties in
personal and business matters.
parties disagree about how contract negotiations unfolded.
Otto asserts Doyle negotiated the terms independently with
Clevenger and Devoe and Otto merely memorialized those terms
for the parties to sign. Doyle recalls she engaged in some
discussions with Clevenger and DeVoe, and further talks
ensued after they hired Otto. Doyle testified in her
deposition she agreed to have Otto act as their attorney. She
did not ask Otto to represent her alone nor did she
compensate him. But she assumed he was "going to watch
over my best interest." She also testified the parties
arrived at all the important terms by talking in person. Otto
was not present during those discussions. She said Clevenger
"gave [Otto] the terms" after she and Clevenger
prepared a mutual letter of intent reducing those terms to a
formal writing. In an April 20 email, he circulated the draft
along with a waiver-of-conflict form. Otto asked the parties
to inform him of any changes. The first draft included a
provision that Doyle would "covenant not to compete in
the business of Doyle & DeVoe LLC for a period of ten
(10) years in the Iowa Counties of Jasper, Poweshiek, Marion,
Marshall," and some parts of Polk County. This provision
appeared under the "Consideration" heading.
receiving the draft, Doyle called Clevenger, and they agreed
to limit the regional restriction to Jasper County. The
parties communicated this and other changes to Otto. On April
21, Otto circulated an updated draft with the new language
setting out "a covenant not to compete in the business
of Doyle & DeVoe LLC for a period of ten (10) years in
next day, Doyle spoke to Otto, expressing her dissatisfaction
with the length of the noncompete clause. She testified,
"[H]e says, most likely if this went to court ever it
would not hold up maybe two to three years." She
explained the parties agreed to ten years because Clevenger
and DeVoe insisted on that term as a condition of the sale.
testified he told both parties "ten years was on the
outside of what is normal and what a court might allow."
He thought, depending on the circumstances, "a court
might reform a ten-year covenant" because "most
covenants are two to three years" and "[d]epending
on the circumstances, three to five may be appropriate"
but a decade "was on the outside of what I've seen
or what I've perceived as reasonable."
these discussions, the parties made no further edits to the
noncompete clause. On April 23, Otto sent the parties a
revised letter of intent. Doyle read the draft and suggested
no further changes. The ...