Larry R. Hedlund v. State of Iowa K. Brian London, Commissioner of the Iowa Department of Public Safety, Individually Charis M. Paulson, Director, Division of Criminal Investigation, Individually Gerard F. Meyers, Assistant Director, Division of Criminal Investigation, Individually And Terry E. Branstad, Individually , 875 N.W.2d 720 ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–1969
Filed February 26, 2016
LARRY R. HEDLUND,
Appellant,
vs.
STATE OF IOWA; K. BRIAN LONDON, Commissioner of the Iowa
Department of Public Safety, Individually; CHARIS M. PAULSON,
Director, Division of Criminal Investigation, Individually; GERARD F.
MEYERS, Assistant Director, Division of Criminal Investigation,
Individually; and TERRY E. BRANSTAD, Individually,
Appellees.
Appeal from the Iowa District Court for Polk County, Dennis J.
Stovall, Judge.
A former state law enforcement agent appeals a district court’s
interlocutory ruling dismissing his claim for wrongful discharge in
violation of public policy. APPEAL DISMISSED.
Thomas J. Duff of Duff Law Firm, P.L.C., Des Moines, and
Elizabeth Flansburg of Lawyer, Dougherty, Palmer & Flansburg, PLC,
West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Jeffrey C. Peterzalek and
Julie J. Bussanmas, Assistant Attorneys General, for appellees.
2
MANSFIELD, Justice.
In this interlocutory appeal, a former agent of the Iowa Division of
Criminal Investigation (DCI) challenges the district court’s dismissal of
his claim for wrongful discharge in violation of public policy. The agent’s
application for leave to appeal was filed more than thirty days after the
district court’s order but within thirty days of the court’s denial of the
plaintiff’s motion to amend findings and conclusions under Iowa Rule of
Civil Procedure 1.904(2). The defendants urge that the appeal is
untimely and should be dismissed.
Applying our settled precedent that rule 1.904(2) is not available to
seek mere reconsideration of a legal ruling and our equally settled
precedent that an improper rule 1.904(2) motion does not toll the time
for appeal, we conclude the agent’s appeal is untimely. Therefore, we
dismiss the appeal. Because the dismissed appeal was interlocutory, the
agent may appeal the ruling on his public-policy wrongful-discharge
claim at the conclusion of this case.
I. Background Facts and Proceedings.
Because we are reviewing the grant of a motion to dismiss for
failure to state a claim, we accept all well-pleaded facts as true. Dier v.
Peters, 815 N.W.2d 1, 3–4 (Iowa 2012).
Larry Hedlund was a long-time employee of the Department of
Public Safety (DPS), and in April 2013, he was working for the DCI. On
April 26, while driving on Highway 20, he noticed a black SUV traveling
at what he believed to be a “hard ninety.” Hedlund reported the speeding
SUV to the local dispatch. The Governor and Lieutenant Governor were
among the SUV’s passengers. The vehicle was not pulled over or ticketed
at that time.
3
On April 29 and 30, Hedlund sent several emails related to this
incident. On May 1, the DCI placed Hedlund on paid administrative
leave. The DPS Commissioner terminated Hedlund’s employment on
July 17.
On August 8, Hedlund filed a petition in the Polk County District
Court alleging wrongful discharge in violation of public policy and Iowa
Code section 70A.28(2) (2013). 1 Hedlund named the State of Iowa, DPS
Commissioner Brian London, DCI Director Charis Paulson, and DCI
Assistant Director Gerard Meyers—in their individual capacities—as
defendants.
Additionally, on August 12, Hedlund filed an appeal of his
termination notice with the Employment Appeal Board (EAB) pursuant to
Iowa Code section 80.15. 2 On August 15, Hedlund also filed an appeal of
his termination with the Public Employment Relations Board (PERB)
1Section 70A.28(2) provides in part:
A person shall not discharge an employee from . . . a position in a state
employment system administered by, or subject to approval of, a state
agency as a reprisal for . . . a disclosure of information to any other
public official or law enforcement agency if the employee reasonably
believes the information evidences a violation of law or rule,
mismanagement, a gross abuse of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.
2Section 80.15 provides in part:
After . . . twelve months’ service, a peace officer of [DPS], who was
appointed after having passed the examinations, is not subject to
dismissal, suspension, disciplinary demotion, or other disciplinary action
resulting in the loss of pay unless charges have been filed with the
department of inspections and appeals and a hearing held by the
employment appeal board created by section 10A.601, if requested by the
peace officer, at which the peace officer has an opportunity to present a
defense to the charges.
4
pursuant to Iowa Code section 70A.28(6). 3
On September 25, the defendants moved for a stay of the court
proceedings, arguing that Hedlund’s suit was premature until his
pending administrative appeals were adjudicated. Hedlund responded by
asking both agencies for declaratory orders. See Iowa Code § 17A.9(1)(a).
Specifically, he asked both agencies to rule that he did not have to
exhaust their remedies before bringing wrongful-discharge claims in
district court and that their remedies were not exclusive. Hedlund also
advised the district court that he would agree to a stay until the petitions
for declaratory orders were resolved.
On November 1, the court granted the defendants a stay in the
proceedings pending the outcome of Hedlund’s administrative appeals.
On December 10, the EAB issued a ruling on Hedlund’s request for a
declaratory order. The ruling stated the only remedy available in the
Iowa Code section 80.15 hearing was reinstatement. It also said that if
Hedlund wanted reinstatement, he had to pursue such relief under
section 80.15. Hedlund retired from DPS and on January 21, 2014,
dismissed his appeal before the EAB.
On April 7, Hedlund asked the district court to lift the stay. He
described the EAB’s ruling and added that PERB had not yet ruled on his
petition for a declaratory order. (It turned out that PERB ruled that day.)
The defendants responded to Hedlund’s filing the next day and joined his
3Section 70A.28(6) provides in part:
An employee eligible to pursue an administrative action pursuant to this
subsection who is discharged, suspended, demoted, or otherwise receives
a reduction in pay and who believes the adverse employment action was
taken as a result of the employee's disclosure of information that was
authorized pursuant to subsection 2, may file an appeal of the adverse
employment action with the public employment relations board within
thirty calendar days following . . . the effective date of the action . . . .
5
request to lift the stay. The court entered an order lifting the stay on
April 30.
Once district court proceedings resumed, Hedlund filed an
amended petition on May 1 naming the Governor in his individual
capacity as an additional defendant. The new petition also alleged that
the defendants had committed defamation and intentional infliction of
emotional distress. On May 19, the defendants moved to dismiss
Hedlund’s petition pursuant to Iowa Rule of Civil Procedure 1.421(1)(f). 4
The defendants filed briefs in support of dismissal on May 19 and
July 7. Hedlund filed briefs in resistance of dismissal on June 16 and
July 21. On July 23, the court held a hearing on the motion to dismiss.
At the conclusion of the hearing, the court stated,
[W]hat I’ll do is, I’m going to leave the record open for the
plaintiff to submit any additional briefing that he deems
appropriate. And you must have that to me no later than
August 1st. And then I will give the defendant a chance to
file anything that they deem appropriate by August 12. And
as of August 12th, the record will close and the matter will
be submitted. Okay.
Both parties consented to this procedure on the record.
Hedlund filed his supplemental brief on August 1 and the
defendants filed theirs on August 6.
On September 15, the district court issued its ruling on the motion
to dismiss. The court granted the motion with regard to Hedlund’s claim
of wrongful discharge in violation of public policy, finding that “no clearly
defined and well-recognized [public policy] exception protected Plaintiff’s
actions.” Additionally, the court concluded that Hedlund had statutory
protection from wrongful discharge under Iowa Code section 80.15 and
4Thisrule provides in part, “The following defenses or matters may be raised by
pre-answer motion: . . . [f]ailure to state a claim upon which relief may be granted.”
6
that this protection “diminishe[d] the idea that he had a compelling need
for protection from wrongful discharge” at common law. The court
declined to dismiss the remaining counts in Hedlund’s petition.
On September 25, Hedlund filed a motion to amend the court’s
dismissal ruling, invoking Iowa Rule of Civil Procedure 1.904(2). 5 This
filing did not cite new facts or new Iowa law. Instead, Hedlund primarily
argued that the dismissal of the common-law wrongful-discharge count
was inconsistent with some out-of-state appellate decisions that had not
previously been cited to the court. On October 6, the defendants filed a
resistance to Hedlund’s motion. On October 17, Hedlund filed a reply
brief.
The reply brief had two exhibits attached. One was a copy of the
December 10, 2013 ruling of the EAB. The other was a copy of the April
7, 2014 ruling of PERB.
The court denied the motion to amend on October 30 stating,
Upon review, the Court finds that Plaintiff has
presented no new facts or authority that persuades the
Court to amend its prior ruling. The prior ruling was issued
based on the consideration of existing Iowa law. Plaintiff has
not shown that the Court made a mistake of law or fact in its
Ruling. The Plaintiff merely disagrees with the conclusion
reached by the Court. Mere disagreement with the result is
not a basis for this Court to amend or enlarge its previous
ruling.
On November 26, Hedlund filed an application for interlocutory
review with this court. We granted Hedlund’s application on December
19, staying further district court proceedings.
5This rule provides in part:
On motion joined with or filed within the time allowed for a motion for
new trial, the findings and conclusions may be enlarged or amended and
the judgment or decree modified accordingly or a different judgment or
decree substituted.
7
II. Standard of Review.
Our standard of review for a district court’s ruling on a motion to
dismiss is for correction of errors at law. Mueller v. Wellmark, Inc., 818
N.W.2d 244, 253 (Iowa 2012). We will affirm a district court’s grant of a
motion to dismiss if the petition fails to state a claim upon which relief
may be granted. See King v. State, 818 N.W.2d 1, 8 (Iowa 2012). “For
purposes of reviewing a ruling on a motion to dismiss, we accept as true
the petition’s well-pleaded factual allegations, but not its legal
conclusions.” Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014).
III. Analysis.
We must deal with a threshold matter. The State challenges
Hedlund’s interlocutory appeal as untimely. If the State is correct, we
are without jurisdiction to hear Hedlund’s appeal. 6 We consider
challenges to our jurisdiction before other issues in a case. See Tigges v.
City of Ames, 356 N.W.2d 503, 511 (Iowa 1984).
According to the Iowa Rules of Appellate Procedure,
An application for interlocutory appeal must be filed within
30 days after entry of the challenged ruling or order.
However, if a motion is timely filed under Iowa R. Civ. P.
1.904(2), the application must be filed within 30 days after
the filing of the ruling on such motion.
Iowa R. App. P. 6.104(1)(b)(2).
Hedlund filed his application for interlocutory review seventy-one
days after the district court ruled on the State’s motion to dismiss. In
the meantime, he had filed—and the court ruled on—a rule 1.904(2)
motion to amend the court’s ruling on the motion to dismiss.
6Although the defendants opposed Hedlund’s application for interlocutory review
partly on the ground that the appeal was untimely, we did not rule on that issue in
granting the application. Thus, it remains for us to resolve now.
8
We have repeatedly stated that only a “proper rule 1.904(2) motion”
extends the time for appeal from the date of the original ruling. See Baur
v. Baur Farms, Inc., 832 N.W.2d 663, 668 (Iowa 2013); In re Marriage of
Okland, 699 N.W.2d 260, 266–67 (Iowa 2005) (“[A]n untimely or improper
rule 1.904(2) motion cannot extend the time for appeal.” (Footnote
omitted.)); Explore Info. Servs. v. Iowa Ct. Info. Sys., 636 N.W.2d 50, 54
(Iowa 2001) (considering a motion to reconsider under 1.904(2) and
noting “[i]f the motion was not appropriate, then [the plaintiff’s] notice of
appeal . . . was late and this court is without jurisdiction”); Bellach v. IMT
Ins. Co., 573 N.W.2d 903, 904–05 (Iowa 1998) (“A motion relying on rule
[1.904(2)], but filed for an improper purpose, will not toll the thirty-day
period for appeal . . . .”); Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa
1985) (“[W]e have jurisdiction of the appeal only if [plaintiffs’] motion to
reconsider was a motion provided for in [rule 1.904(2)].”)
In Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983), we addressed
whether a rule 1.904(2) motion may properly follow the granting of a
motion to dismiss. There, the plaintiff sued for alienation of affection,
and the defendant moved to dismiss the claim. Id. at 529. The trial
court sustained the motion. Id. Three days after the court’s ruling, the
defendant filed a “Motion to Set Aside, Vacate or Modify Dismissal or for
New Trial,” which the court overruled. Id. Within thirty days of the
court’s ruling on the defendant’s motion to set aside but more than thirty
days after the ruling on the motion to dismiss, the plaintiff filed a notice
of appeal from both rulings. Id.
The plaintiff asserted that his appeal was timely because the
motion to set aside was a rule 1.904(2) motion, which tolled the time to
9
appeal. 7 Id. at 530. However, we concluded that “a rule [1.904(2)]
motion lies only when addressed to a ruling made upon trial of an issue
of fact without a jury.” Id. We held,
Rule [1.904(2)] . . . does not apply to rulings on motions to
dismiss a petition under rule [1.421(1)(f)] for “[f]ailure to
state a claim on which any relief can be granted.” No issue
of fact is raised by a motion to dismiss.
Id. (quoting Iowa R. Civ. P. 1.421(1)(f)). Consequently, we dismissed the
appeal as untimely. Id. at 531.
In our opinion, we noted that the rules regarding summary
judgment and contested case proceedings had been amended to make
rule 1.904(2) applicable to them. Id. at 530; see Iowa R. Civ. P. 1.981(3)
(“If summary judgment is rendered on the entire case, rule 1.904(2) shall
apply.”); Iowa R. Civ. P. 1.1603 (“In proceedings for judicial review of
agency action in a contested case . . . [t]he provisions of rule 1.904(2)
shall apply.”). We pointed out that no similar change had been made to
our rule regarding motions to dismiss. See Kunau, 328 N.W.2d at 530.
Nor has such a change been made since then. See Iowa R. Civ. P. 1.421.
Thus, Kunau is still basically good law.
In Bellach, we found that a rule 1.904(2) motion filed after the
denial of a motion for judgment notwithstanding the verdict or for new
trial did not extend the time for appeal. 573 N.W.2d at 904. We
emphasized that the motion “amounted to no more than a rehash of legal
issues” previously raised and decided. Id. at 905. We also noted that
there were “no preservation-of-error dilemmas lurking here” and that
7The Kunau, Bellach, and Explore Information Services decisions cite to rules
179(b) and 104(b), which have since been renumbered to rules 1.904(2) and 1.421(1)(f)
respectively. Because the relevant content of the rules has not changed, we cite to the
rules’ current numberings throughout.
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“[t]he only thing accomplished by IMT’s post-posttrial motion was a five-
month delay in the entry of judgment on the jury’s verdict.” We therefore
dismissed the appeal as untimely. Id. at 905–06.
In Explore Information Services, we followed Kunau in dismissing
an appeal that was filed more than thirty days after the district court had
ruled on a motion for adjudication of law points but less than thirty days
after the district court had denied plaintiff’s rule 1.904(2) motion. 636
N.W.2d at 53–54, 57–58. The requested adjudication was dispositive of
the case, and the facts supporting it were uncontroverted by the parties.
Id. at 56–57. We said, “[A rule 1.904(2)] motion is restricted to a nonjury
ruling on an issue of fact.” Id. at 55. Given that the nature of such an
adjudication is “to dispose of a case on a point of law where the facts are
undisputed,” we held a rule 1.904(2) motion cannot be applied to such a
proceeding—thus rendering the appeal untimely. Id. at 56–57 (quoting
Easter Lake Estates, Inc. v. Polk Cty., 444 N.W.2d 72, 74 (Iowa 1989)).
Other decisions have restated the heart of the matter—i.e., that
rule 1.904(2) is a tool for correction of factual error or preservation of
legal error, not a device for rearguing the law. “[A]bsent the application
of a special rule, a rule [1.904(2)] motion is not available to challenge a
ruling that did not involve a factual issue but instead was confined to the
determination of a legal question.” Meier v. Senecaut, 641 N.W.2d 532,
538 (Iowa 2002). This is because “[a] second hearing solely involving a
legal issue is merely repetitive.” Id. “[A] rule 1.904(2) motion raising a
purely legal issue does not extend the time for appeal.” Lamasters v.
State, 821 N.W.2d 856, 863 n. 1 (Iowa 2012).
It is true that in Sierra Club Iowa Chapter v. Iowa Department of
Transportation, we found that a rule 1.904(2) motion was properly filed
after a district court issued an incomplete ruling on a motion to dismiss.
11
832 N.W.2d 636, 641–42 (Iowa 2013). In that case, the plaintiff’s rule
1.904(2) motion drew attention to certain “summary” aspects of the
district court’s decision. Id. at 641. These included that the district
court had not addressed the standard of review, did not explain why a
certain provision of the Iowa Code applied, and had given “no rationale to
resolve the apparent discrepancy between its decision and the
jurisprudence of our court.” Id. at 641–42. Hence, we found the motion
proper because it was filed “to preserve error.” Id. at 642. We reiterated,
however, that a motion amounting “to no more than a rehash of legal
issues raised and decided adversely” or “used merely to obtain
reconsideration of the district court’s decision” would not toll the time for
appeal. Id. at 641 (quoting Explore Info. Servs., 636 N.W.2d at 57).
Hedlund maintained in his appellate briefing and at oral argument
that his motion to amend the district court’s ruling presented new facts.
We disagree. We have reviewed his September 25, 2014 motion and
eight-page supporting brief in their entirety. It is clear the only new
material they contain is some citation and discussion of out-of-state
cases that could have been presented earlier—i.e., during the extensive
briefing that occurred before the trial court’s ruling. Thus, the
September 25 filing is an example of a pure “rehash of legal issues” that
was not necessary “to preserve error.” See id.
Hedlund claims he had not previously quoted from the portion of
Iowa Code section 80.15, which indicates that Hedlund on taking office
had to take “an oath . . . to uphold the laws and Constitution of the
United States and Constitution of the State of Iowa.” Iowa Code § 80.15.
He contends that this is a “new fact” in support of his wrongful discharge
claim. Again, we disagree. Section 80.15 had already been addressed at
length by the parties. While this portion had not previously been quoted,
12
Hedlund had emphasized his statutory duty under chapter 80 to enforce
the laws, and the district court had addressed that point in its original
ruling.
During oral argument before us, Hedlund made the further point
that his October 17 reply brief in support of his rule 1.904(2) motion
contained two exhibits. These were copies of the two administrative
rulings by the EAB and PERB on his petitions for declaratory orders.
Hedlund attached these exhibits to bolster his contention that “[t]he only
protection afforded by section 80.15 is . . . reinstatement.” However, that
point was already before the court. By its terms, Iowa Code section
80.15 does not provide damage remedies. In its original ruling granting
the motion to dismiss the common-law wrongful-discharge count, the
district court noted that Hedlund had statutory protections “from
wrongful discharge” in that he was not “subject to dismissal” unless
charges had been filed and a hearing held. Hence, the court was under
no misimpression about the facts, nor was its reasoning so cryptic as to
raise preservation-of-error concerns. Cf. Sierra Club, 832 N.W.2d at 641–
42. The parties had already pointed out in their August briefing that
Hedlund had chosen not to pursue his section 80.15 remedy but had
elected to drop his administrative appeal from the termination and retire
from DPS. And in any event, the October 17 reply brief should be
distinguished from the September 25 rule 1.904(2) motion itself,
especially given that the reply brief was not filed until more than thirty
days after the district court’s initial ruling.
Thus, Hedlund’s motion did not address any actual or possible
factual misconceptions by the district court. It did not address lacunae
in the court’s ruling. It was not necessary to preserve error for appeal. It
simply cited more authority in support of the same arguments that had
13
already been rejected. Because Hedlund’s motion to amend was not a
proper rule 1.904(2) motion, this appeal is untimely, and it must be
dismissed.
We close with two important points. First, dismissal of this appeal
does not foreclose Hedlund from challenging the ruling that he has no
claim for wrongful discharge in violation of public policy. Hedlund
retains the ability to appeal that ruling at the conclusion of the case.
Second, this court is aware that rule 1.904(2) has been subject to
criticism. We have initiated an effort to explore its possible amendment.
IV. Conclusion.
For the foregoing reasons, we dismiss this appeal.
APPEAL DISMISSED.