Robert J. Hemmingsen and Cheryl R. Hemmingsen v. Robert J. Mings, Jani S. Mings, and Kathleen L. Mings ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0683
Filed May 1, 2019
ROBERT J. HEMMINGSEN and CHERYL R. HEMMINGSEN,
Plaintiffs-Appellants,
vs.
ROBERT J. MINGS, JANI S. MINGS, and KATHLEEN L. MINGS,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
The Hemmingsens appeal the district court’s grant of summary judgment in
favor of the Mings. AFFIRMED.
Robert J. Hemmingsen and Cheryl R. Hemmingsen, Council Bluffs, pro se
appellants.
Marti S. Sleister of Sleister Law, Fremont, Nebraska, for appellees.
Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
2
VAITHESWARAN, Judge.
We must decide whether the doctrine of claim preclusion bars the present
action.
I. Background Facts and Proceedings
Robert and Cheryl Hemmingsen sued Robert, Jani, and Kathleen Mings for
damages allegedly arising from the flow of water and silt residue toward the
Hemmingsens’ property. They claimed the Mings “altered the natural system of
drainage from their domin[an]t estate in such a ma[nn]er as to substantially
increase the burden upon [their] servient estate.”
The Mings moved for summary judgment.1 They asserted the present
lawsuit raised the same allegations as those contained in two prior lawsuits and
the action was barred by the doctrine of claim preclusion.
The district court granted the summary judgment motion. After taking
judicial notice of prior court files, the court concluded the first lawsuit was “identical
in alleging the Mings interfered with the enjoyment of the [Hemmingsens’]
property.” The court acknowledged a “difference” in the second lawsuit’s “theory
of recovery” but found the difference did not entitle the Hemmingsens to “a second
day in court.” The Hemmingsens appealed.
II. Analysis
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
1
They first filed a motion to dismiss, which the district court denied.
3
entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3); Bandstra v.
Covenant Reformed Church, 913 N.W.2d 19, 36 (Iowa 2018).
A. Judicial Notice
As a preliminary matter, we address the district court’s decision to take
judicial notice of the court files in the earlier cases. “Judicial notice is defined as
‘the cognizance of certain facts which judges and jurors may properly take and act
on without proof because they already know them.’” McBeth v. Merchants Motor
Freight, Inc., 79 N.W.2d 303, 325 (Iowa 1956) (citation omitted). “[O]rdinarily
judicial notice may not be taken of court proceedings in related but wholly different
cases.” In re Adkins, 298 N.W.2d 273, 277 (Iowa 1980). But there are exceptions,
“providing certain safeguards are followed.” Id. at 277–78. Specifically, “[p]apers
requested to be noticed must be marked, identified, and made a part of the record.
Testimony must be transcribed, properly certified, marked and made a part of the
record. Trial court’s ruling . . . should state and describe what it is the court is
judicially noticing.” Id. at 278. Even if a party asks the district court to take judicial
notice of the complete record in a case, the party must still identify those portions
of the record it relies on to support summary judgment. Schmidt v. State, 909
N.W.2d 778, 801 (Iowa 2018).
The Mings referred to the two prior lawsuits and quoted portions of the
petitions and rulings from those lawsuits in their summary judgment motion.
However, they did not attach the documents to their motion. The only item they
formally introduced into the summary judgment record was a portion of a transcript
from the first action summarizing a settlement reached between the parties. In
resisting the motion, the Hemmingsens similarly did not identify and introduce
4
pertinent portions of the prior proceedings. To decide a question of claim
preclusion, “it is necessary for the court to have before it the appropriate court
records from the prior case.” Turner v. Iowa State Bank & Tr. Co. of Fairfield, 743
N.W.2d 1, 4 (Iowa 2007). In the absence of clearly-marked documents from the
prior litigation, we could conclude the record is insufficient for our review. Id.(“Even if we were to take judicial notice of [a prior action], we cannot say with any
certainty the issues raised in the probate action are identical to those raised in
Turner’s petition in the present case. Accordingly, at this stage of the proceedings
we cannot determine if the theory of res judicata, issue preclusion, or claim
preclusion bars Turner’s claims.”);2 Hemmingsen v. Mings, No. 13-0770, 2014 WL
69769, at *2 (Iowa Ct. App. Jan. 9, 2014) (reviewing a ruling granting a motion to
dismiss the second lawsuit filed by the Hemmingsens and holding, “Because the
nature of the prior adjudication does not appear on the face of the petition or arise
from matters of which the court may take judicial notice, the district court erred in
granting the motion to dismiss”). But, on appeal, the parties have placed the
pertinent documents from the prior actions in our appendix. Because the district
court took judicial notice of the prior court proceedings, both parties to this action
were parties to those proceedings, and the motion for summary judgment,
resistance, and district court ruling identified the pertinent documents from the prior
2
In Turner, the res judicata, claim-preclusion, and issue-preclusion issues were presented
on a motion to dismiss and the court stated, “These defenses are better suited to be raised
through a motion for summary judgment, where the necessary supporting documentation
can be submitted for consideration by the court in ruling on the motion.” 43 N.W.2d at 5.
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proceedings, we conclude the record is adequate for us to review the merits of the
court’s ruling.3
B. Claim Preclusion
“The general rule of claim preclusion holds that a valid and final judgment
on a claim bars a second action on the adjudicated claim or any part thereof.”
Pavone v. Kirke, 807 N.W.2d 828, 835 (Iowa 2011). “[A] party must litigate all
matters growing out of the claim, and claim preclusion will apply ‘not only to matters
actually determined in an earlier action but to all relevant matters that could have
been determined.’” Id. (citation omitted). “Claim preclusion may preclude litigation
on matters the parties never litigated in the first claim.” Id. “An adjudication in a
prior action between the same parties on the same claim is final as to all issues
that could have been presented to the court for determination.” Id. at 836 (citation
omitted). “Simply put, a party is not entitled to a ‘second bite’ simply by alleging a
new theory of recovery for the same wrong.” Id. (citation omitted).
To establish claim preclusion a party must show: (1) the parties in
the first and second action are the same parties or parties in privity,
(2) there was a final judgment on the merits in the first action, and
(3) the claim in the second suit could have been fully and fairly
adjudicated in the prior case (i.e., both suits involve the same cause
of action).
Id. (citation omitted).
In applying these factors, the district court stated:
[The first lawsuit] involved a dispute of the land as well as damage
to the land. In the case at hand, the protected right deals with
damage to the same land that was in dispute in the previous case.
Therefore, the first element is met. When reviewing the alleged
3
In re Adkins set forth the best practice when judicial notice is invoked: all judicially-noticed
documents should be “marked, identified, and made a part of the record.” 298 N.W.2d
at 278.
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wrong, the [Hemmingsens] claim damage and future damage of their
property from construction, runoff, and tree removal. This is also the
same alleged wrong from the previous case. . . . Finally, the
evidence used in this case would be the same as in [the first
lawsuit]—an expert will opine about possible damage to the property.
Therefore, this claim could have been fully and fairly adjudicated in
the prior case.
The prior lawsuit is identical in alleging the Mings interfered
with the enjoyment of the [Hemmingsens’] property, the only
difference the court finds is the difference in its theory of recovery.
On our review of the judicially-noticed petition from the first action, we discern no
error in the district court’s conclusion.4 That lawsuit by certain landowners alleged
the Hemmingsens trespassed on their property. The Hemmingsens, in turn,
interpleaded the Mings. The first two counts of their third-party petition alleged a
boundary dispute with the Mings. In the third count, the Hemmingsens alleged:
[T]he Mings have taken possession of the land located between the
fence line and its respective “deed line” and ha[ve] prevented [them]
from exercising their use and enjoyment of the area, and in some
areas the Mings appear to have flattened the area with a bulldozer
and have substantially changed the condition of the property as it
previously existed, and may possibly have created erosion problems
in the future in the process, or may have changed the natural flow of
the surface water through said actions.
They further alleged the Mings “are believed to have cut down trees in said
disputed area without the[ir] permission and consent.” They claimed:
[E]ach Mings’ trespass by taking possession of the land between the
fence line and its respective “deed line” and its continuing trespass
has damaged [them] by their prevention of [their] use and enjoyment
of the area; by changing the area by the destruction of the trees and
the flattening of the ground in the area; by bringing about conditions
which may result in soil erosion and drainage problems in the future;
and in ways which will surface in the future.
4
We find it unnecessary to examine the second lawsuit.
7
The boundary dispute was resolved by settlement, which was approved by
the district court. The entire first lawsuit was resolved by an order for judgment.
Resolution of the lawsuit amounted to a “final adjudication on the merits.” Cf.
Mensing v. Sturgeon, 97 N.W.2d 145, 149 (Iowa 1959) (stating a “voluntary
dismissal with prejudice after settlement and release constitutes a bar by
agreement”).
We recognize the district court did not address the count of the
Hemmingsens’ petition seeking damages for loss of use and enjoyment. But even
though there was no agreed disposition of the third count, that count “could have
been fully and fairly adjudicated in the original . . . action.” Pavone, 807 N.W.2d at
838; see also Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315, 320 (Iowa
2002) (“[I]t was Arnevik’s duty to explore and discover all of her possible causes
of action and to bring them at the same time she brought her first claim.”).
We affirm the district court’s grant of summary judgment in favor of the
Mings.
AFFIRMED.