               IN THE SUPREME COURT OF IOWA
                                No. 08–1766

                           Filed December 3, 2010


WILLIAM NEAL LAWSON,

      Appellee,

vs.

LINDA IRENE KURTZHALS,

      Appellant.



      Appeal from the Iowa District Court for Woodbury County,

Jeffrey A. Neary, Judge.



       The defendant in a tort action appeals from the district court’s

ruling granting the plaintiff’s request for voluntary dismissal without

prejudice on the fourth day of a jury trial.        Plaintiff cross-appealed.

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN

PART, AND CASE REMANDED WITH DIRECTIONS.



      Rosalynd J. Koob and Alan E. Fredregill of Heidman Law Firm,

L.L.P., Sioux City, for appellant.



      Paul W. Deck of Deck & Deck, L.L.P., Sioux City, for appellee.
                                     2

BAKER, Justice.

      The defendant in a tort action appeals from the district court’s

ruling granting the plaintiff’s request for voluntary dismissal without

prejudice on the fourth day of a jury trial. We hold that the district court

erred in concluding it had no discretion to deny a motion for voluntary

dismissal, and find that under the facts of this case, had the court

exercised discretion in granting the voluntary dismissal, it would have

been an abuse of discretion.    Therefore, we reverse the district court’s

decision granting dismissal.    We, however, affirm the district court’s

ruling on defendant’s motion in limine prohibiting the admission of

evidence on damages not timely provided and its award of attorney fees.

      I. Background Facts and Proceedings.

      On April 19, 2007, the plaintiff, William Lawson, was riding his

bicycle in Sioux City, Iowa, when he was struck by a vehicle driven by

the defendant, Linda Kurtzhals.       Two months later, Lawson filed a

petition alleging he suffered bodily injury and property damage as a

result of Kurtzhals’s negligent and reckless driving.         In response,

Kurtzhals filed an answer and jury demand. The next day Kurtzhals also

served interrogatories on Lawson. Included in these interrogatories were

two interrogatories requesting Lawson to detail the losses he incurred

and the damages he was seeking.           Lawson provided the following

responses to the interrogatories. With respect to his losses, he replied,

“My clothing was destroyed (pants and underclothes).”               To the

interrogatory seeking his damages claimed, he replied, “Not as yet

determined—will supplement.”

      The trial was set for July 15, 2008.       Lawson was deposed on

January 29, 2008.     At the deposition, he was again asked about the

specific amount of compensation he was seeking from Kurtzhals.
                                     3

Lawson responded that he had past medical bills, but that he and his

attorney had not determined the specific amount of compensation he

would seek. On April 9, Kurtzhals’s counsel wrote to Lawson’s attorney

requesting a settlement demand.          Two days later, Lawson’s attorney

inquired as to Kurtzhals’s insurance policy limitations.        Kurtzhals’s

attorney responded with that information the same day.              Lawson’s

attorney did not respond. On May 23, Kurtzhals filed an offer to confess

judgment for $25,000. Again, Lawson did not respond.

      One week before the scheduled trial date, Lawson moved for a

continuance.    The motion was granted over Kurtzhals’s objection, and

the trial was rescheduled for September 23, 2008.         The court’s order

continuing the trial did not allow for the extension of any deadlines

previously set, including the deadline to designate expert witnesses.

      A settlement conference was held on September 17.               It was

unsuccessful.      On that same day, Kurtzhals filed a motion in limine

requesting that the court prohibit Lawson from presenting any evidence

of damages not previously set forth in his interrogatory responses. On

September      18,   Lawson   provided     supplemental   answers    to   the

interrogatories.

      Kurtzhals’s motion in limine was presented to the court on the day

before trial. At that time, the court denied Kurtzhals’s motion; however,

the court preserved the issue for reconsideration later in the proceedings.

That afternoon, Kurtzhals filed a second brief in support of the motion in

limine.   The court addressed Kurtzhals’s supplemental arguments in

support of her motion in limine the following morning, the day the trial

was scheduled to begin. After hearing arguments from both parties, the

court reversed its denial from the previous day, ruling that Lawson was

only allowed to present damages with regard to past medical expenses;
                                                4

all other damage evidence was precluded. At that time, Lawson’s counsel

raised the possibility of requesting a dismissal without prejudice or an

interlocutory appeal, but counsel made no formal motions.

         The trial went on for three days before Lawson rested his case-in-

chief.     At the close of Lawson’s case, Kurtzhals moved for a directed

verdict.        The court took Kurtzhals’s motion under advisement.                          The

following morning, Lawson moved for a voluntary dismissal without

prejudice under Iowa Rule of Civil Procedure 1.943 (2007).                        Kurtzhals

resisted the motion, arguing it would severely prejudice her case. The

court concluded pursuant to case law a plaintiff has an absolute right to

dismiss the case without prejudice.                  The court granted the dismissal

without prejudice and taxed the costs to Lawson. 1

         Lawson then immediately filed a new petition against Kurtzhals

that was essentially identical to the claim dismissed earlier that day.

Kurtzhals filed a motion for sanctions against Lawson for his late

dismissal pursuant to rule 1.413.                   The court found Lawson’s counsel

violated the spirit and substance of rule 1.413 and imposed sanctions for

attorney fees on counsel. The court did not assess any sanctions against

Lawson.
         Kurtzhals filed a notice of appeal.             Lawson cross-appealed.              The

new action instituted by Lawson is still pending.

         II. Discussion and Analysis.

         The parties have raised two issues for our review:                      (1) Did the

district court err in ruling Lawson had a right to voluntarily dismiss his

tort action without prejudice on the last day of a jury trial, and (2) did




         1At   this time, the court also denied Kurtzhals’s motion for a directed verdict.
                                           5

the court abuse its discretion in limiting Lawson’s damages because of

his untimely disclosure?

       A. Voluntary Dismissal Without Prejudice.                   Kurtzhals claims

the district court erred in concluding a plaintiff has an absolute right to

dismiss his cause of action without prejudice. 2 The trial judge granted

Lawson’s motion for voluntary dismissal pursuant to Iowa Rule of Civil

Procedure 1.943. The rule provides:

              A party may, without order of court, dismiss that
       party’s own petition, counter-claim, cross-claim, cross-
       petition or petition of intervention, at any time up until ten
       days before the trial is scheduled to begin. Thereafter a
       party may dismiss an action or that party’s claim therein
       only by consent of the court which may impose such terms
       or conditions as it deems proper; and it shall require the
       consent of any other party asserting a counterclaim against
       the movant, unless that will still remain for an independent
       adjudication.

Iowa R. Civ. P. 1.943.



        2Neither party has addressed whether we have jurisdiction to hear their claims.

We have previously held that a voluntary dismissal under rule 1.943 is final and
terminates the court’s jurisdiction of the action. Smith v. Lally, 379 N.W.2d 914, 916
(Iowa 1986); Witt Mech. Contractors, Inc. v. United Bhd. of Carpenters, 237 N.W.2d 450,
451 (Iowa 1976). After voluntary dismissal, the case is considered “nonexistent” and
the matter usually deemed “unreviewable.” See Montgomery Ward Dev. Corp. v. Bd. of
Review, 488 N.W.2d 436, 443 (Iowa 1992), overruled on other grounds by Transform,
Ltd. v. Assessor of Polk County, 543 N.W.2d 614, 617 (Iowa 1996). Where, however, the
voluntary dismissal is not as favorable as the judgment the defendant sought, the
matter is appealable. H.R. Techs., Inc. v. Astechnologies, Inc., 275 F.3d 1378, 1381
(Fed. Cir. 2002); LaBuhn v. Bulkmatic Transp. Co., 865 F.2d 119, 122 (7th Cir. 1988)
(holding that a party may appeal from the parts of a generally favorable judgment that
are unfavorable); see also Darrah v. Des Moines Gen. Hosp., 436 N.W.2d 53, 54–55 (Iowa
1989) (holding that the voluntary dismissal of an action does not deprive the court of
jurisdiction to hear motions for sanctions after the dismissal).
        In this case, Kurtzhals strenuously objected to the grant of the dismissal in the
middle of trial, citing cost, delay, and the expectation that plaintiff was looking at an
adverse result or at least a diminished result because of the ruling on the motion in
limine. Lawson, on the other hand, offered no explanation for the dismissal. We find
that the dismissal was not favorable to the defendant, especially where the statute of
limitations had not run and an identical suit was filed almost simultaneously. Thus,
we determine that we have jurisdiction to entertain this appeal.
                                     6

      It is clear from the plain language of rule 1.943 that the court

lacks the discretion to deny a party’s motion to voluntarily dismiss “at

any time up until ten days before the trial is scheduled to begin.” Id.

The phrase “without order of court” indicates that this may be done at

the will of the party; thus, the court retains no discretion to prevent such

dismissal. See, e.g., Venard v. Winter, 524 N.W.2d 163, 167 (Iowa 1994).

      The meaning of the second sentence of rule 1.943 is less clear.

This sentence, which applies when the trial is scheduled to begin in ten

days or less, states that “a party may dismiss an action . . . only by

consent of the court which may impose such terms or conditions as it

deems proper.” Iowa R. Civ. P. 1.943 (emphasis added). A review of the

legislative history surrounding voluntary dismissals reveals that, prior to

the enactment of the Iowa Rules of Civil Procedure in 1943, plaintiffs had

the absolute right to dismiss lawsuits at any time up to the moment

before “final submission to [the] jury or court.” Jeffords v. Stockton, 254

Iowa 273, 276, 117 N.W.2d 497, 499 (1962). In 1943, Iowa Rule of Civil

Procedure 215, now renumbered as rule 1.943, was enacted.               The

language of the rule provided:

             A party may, without order of court, dismiss his own
      petition . . . at any time before trial has begun. Thereafter a
      party may dismiss his action or his claim therein only by
      consent of the court which may impose such terms or
      conditions as it deems proper . . . .

Iowa R. Civ. P. 215 (1.943). The official comment to rule 215 provides:

            This rule substantially changed the law on voluntary
      dismissal. It . . . adopted the substance of Federal Rule 41.
      The prior statutes allowed a voluntary dismissal at any time
      before “final submission”, without prejudice.      This rule
      shortens the time and makes it expire when the trial has
      begun.
                                     7

Id. r. 215 official cmt. The advisory committee declared “[t]he rule [was]

designed to prevent indiscriminate dismissals of actions by the parties

litigant.” Id.

      The rule for voluntary dismissal was amended in 1990.              The

drafters substituted “at any time before trial has begun” with “at any

time up until ten days before the trial is scheduled to begin.” Iowa R.

Civ. P. 215 (1990).        When enacting this amendment, however, the

drafters backed away from some of the substantive provisions contained

in the Federal Rules of Civil Procedure.

             The committee declined to recommend adoption of
      Federal Rule of Civil Procedure 41(a)(1) and (2).          The
      committee concluded the federal rule was too harsh for
      plaintiffs when there might be good reasons for dismissing
      cases. The committee recommended allowing the plaintiff to
      voluntarily dismiss an action at any time up until ten days
      before the trial is scheduled to begin. Thereafter the plaintiff
      would have to have the approval of the court and the
      dismissal could be on such terms and conditions as the
      court might impose, such as the payment of costs and/or
      attorney fees which might be occasioned by a late dismissal.

Id. r. 215 official cmt.

      The provisions specifically disclaimed by the drafters only allow

voluntary dismissal before the opposing party serves either an answer or
a motion for summary judgment, or when a stipulation of dismissal is

signed by all the parties who have appeared before the court. Id.; Fed. R.

Civ. P. 41(a)(1), (2). The drafters wished to make the requirements for

voluntary dismissal in Iowa more lenient. They did not, however, intend

to take away the trial court’s discretion to deny voluntary dismissal

motions. The official comment to this amendment provides:

             A number of instances in which cases were dismissed
      by the plaintiff at the last minute before trial or when the
      plaintiff could not obtain a continuance of the trial were
      brought to the committee’s attention. Some of them involved
      instances where cases were dismissed as a jury was sitting
                                           8
       waiting to begin selection. The committee was concerned
       about the fairness of permitting a voluntary dismissal at that
       late juncture.

Iowa R. Civ. P. 215 official cmt. By providing that a party must obtain

consent from the court to dismiss, the rule necessarily implies that the

court has discretion in deciding whether to grant the motion. See, e.g.,

Bridgeport Music, Inc. v. Universal-MCA Music Pub., Inc., 583 F.3d 948,

953 (6th Cir. 2009) (“A district court’s decisions with respect to a motion

for voluntary dismissal under Rule 41(a)(2) are reviewed for abuse of

discretion.”). We therefore hold that anytime after ten days before the

trial is scheduled to begin the ability to seek a voluntary dismissal

without prejudice is not absolute. It is within the discretion of the trial

court. 3 Thus, we review the grant or denial of the motion for voluntary
dismissal for an abuse of discretion.

       B. Abuse of Discretion.          Relying on case law that predated the

1990 amendment to rule 1.943, the trial court determined that it had no

discretion to deny the plaintiff’s motion for voluntary dismissal and was

compelled to grant the dismissal. “A court abuses its discretion when it

fails to exercise any discretion.” State v. Hager, 630 N.W.2d 828, 836

(Iowa 2001). Therefore, the district court abused its discretion when it
granted the voluntary dismissal.



        3In exercising its discretion on motions for voluntary dismissal, federal courts

consider the expense and inconvenience to the defendant, legal prejudice suffered by
the defendant, and whether terms and conditions imposed by the court can make the
defendant reasonably whole. See Miller v. Trans World Airlines, Inc., 103 F.R.D. 20, 21
(E.D. Pa. 1984); Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986) (“In federal
practice, voluntary dismissals sought in good faith are ordinarily granted if the only
harm suffered by the defendant is the expense of preparing a responsive pleading, since
‘he can be made whole if dismissal is conditioned upon reimbursement by the
plaintiff.’ ” (quoting Note, Exercise of Discretion in Permitting Dismissals Without
Prejudice Under Federal Rule 41(a), 54 Colum. L. Rev. 616, 618 (1954)). The court
appears to have correctly taken these factors into consideration as it awarded
Kurtzhals’s attorney fees for trial.
                                       9

      Even if the court had exercised its discretion when granting the

plaintiff’s motion for voluntary dismissal, such action would have been

an abuse of discretion. In this instance, the jury was already empanelled

and had been hearing testimony for three full days. We believe this is

exactly the situation for which the drafters intended the trial court to use

its discretion and deny the motion.

      C. Remedy. A problem, however, exists because the case is gone;

the case and the jury have both been dismissed. We cannot undo what

has already occurred. The trial cannot resume where it left off. We must

therefore fashion a remedy that would be consistent with the spirit and

intent of the rule.

      We determined that granting the voluntary dismissal under the

circumstances of this case would have been an abuse of discretion. The

district court even commented that it found the defendant’s resistance to

the dismissal “compelling” and that it would be “inclined to consider

[defendant’s] argument favorably.” At a minimum, the court could have

allowed the dismissal, but only under the condition that, if refiled, the

case would be subject to the same conditions as the previous case. See,

e.g., Parker v. Freightliner Corp., 940 F.2d 1019, 1023–24 (7th Cir. 1991)

(approving the condition in the trial court’s order that any refiled action

be subject to a prior order prohibiting the use of expert testimony as a

sanction for his willful disregard of discovery orders).       We therefore

remand this case to the district court with directions that an order be

issued reinstating the case and a trial be scheduled and conducted

under the prior orders and sanctions, including the ruling on defendant’s

motion in limine prohibiting the admission of evidence on damages not

timely provided.      We further direct that this case be tried prior to the

refiled case.
                                      10

      III. Cross-Appeal.

      Lawson cross-appeals alleging that the district court erred in

granting Kurtzhals’s motion in limine seeking sanctions for Lawson’s

failure to supplement interrogatories regarding his damages claimed. In

granting the motion, the district court limited Lawson from presenting

any evidence of damages not previously set forth in his interrogatory

responses. The trial court granted Kurtzhals’s motion as a sanction for

Lawson’s failure to supplement interrogatory answers until just days

before trial.

      “The district court has inherent power . . . to maintain and

regulate cases proceeding to final disposition within its jurisdiction . . . .”

Hearity v. Iowa Dist. Ct., 440 N.W.2d 860, 863 (Iowa 1989). We recently

reaffirmed that trial courts have this inherent power. Keefe v. Bernard,

774 N.W.2d 663, 669 (Iowa 2009) (citing White v. Citizens Nat'l Bank of

Boone, 262 N.W.2d 812, 816 (Iowa 1978)); see also Nat’l Hockey League

v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S. Ct. 2778, 2781, 49

L. Ed. 2d 747, 751 (1976); Merrick v. Paul Revere Life Ins. Co., 500 F.3d

1007, 1014 (9th Cir. 2007) (stating that courts “have ‘inherent power’ to

exclude evidence as a sanction for [discovery] abuses”).          This power
includes the authority to exclude evidence for failure to supplement

discovery. See Preferred Mktg. Assocs. Co. v. Hawkeye Nat’l Life Ins. Co.,

452 N.W.2d 389, 393 (Iowa 1990).             Noncompliance with discovery

requirements is often not tolerated.       See, e.g., Sullivan v. Chi. & Nw.

Transp. Co., 326 N.W.2d 320, 324 (Iowa 1982) (upholding the exclusion

of an expert witness as sanction for discovery rule violation). We will not

reverse the imposition of a sanction unless there has been an abuse of

discretion. Preferred Mktg. Assocs. Co., 452 N.W.2d at 393. An abuse of

discretion consists of a ruling which rests upon clearly untenable or
                                   11

unreasonable grounds.     In re Gianforte, 773 N.W.2d 540, 544 (Iowa

2009).

      As noted previously, Kurtzhals attempted to determine the amount

of damages claimed through both interrogatories and in a deposition of

Lawson.    Both attempts were unsuccessful.       Lawson also failed to

respond to a settlement demand. The discovery deadline passed with no

supplementation of Lawson’s prior answers. It was not until just days

prior to trial and after receiving a motion in limine that Lawson finally

provided the amount of damages claimed.

      Confronted with this late supplementation, the court had a range

of choices beyond the one ordered.          It could have allowed the

supplementation and the claim to be made for those damages at trial.

United States v. $9,041,598.68, 163 F.3d 238, 252 (5th Cir. 1998) (noting

that a trial court can admit evidence that is disclosed in an untimely

fashion if the court deems the evidence harmless). It could have offered

the defendant the option of a continuance of the trial. U.S. Fid. & Guar.

Co. v. Baker Material Handling Corp., 62 F.3d 24, 28–29 (1st Cir. 1995).

Dismissal of the claim may also be available in some circumstances.

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985) (noting that

dismissal is a “sanction of last resort” and available “only in extreme

circumstances”).

      In determining whether the court has abused its discretion, we

must determine whether the trial court appropriately considered the

options available.    “ ‘In determining whether . . . a sanction is

appropriate, the trial court should consider several factors, including:

(1) the party’s reasons for not providing the challenged evidence during

discovery; (2) the importance of the evidence; (3) the time needed for the

other side to prepare to meet the evidence; and (4) the propriety of
                                     12

granting a continuance.’ ” 27 C.J.S. Discovery § 102, at 169 (2009)

(quoting Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn.

2004)). We believe that these factors provide an appropriate framework

for determining whether the trial court abused its discretion in

prohibiting Lawson from presenting any evidence of damages not

previously provided in his interrogatory responses.       In reviewing these

factors, we find that the district court did not abuse its discretion in

limiting Lawson’s claim to only those damages previously disclosed.

      Lawson argues his reason for failing to provide a supplemented

answer is that it was Kurtzhals’s duty to demand supplementation prior

to the imposition of sanctions. Although there may have been no formal

request for supplementation, Lawson’s argument fails for three reasons.

First, Kurtzhals did not simply serve the interrogatories and wait in the

weeds.     Kurtzhals sought to determine the information both by

deposition and in a request for a settlement demand. Second, Iowa Rule

of Civil Procedure 1.503(4)(a)(3) requires a party “to supplement the

response with respect to any question directly addressed [in] any . . .

matter that bears materially upon a claim or defense asserted by any

party to the action.”   See also White, 262 N.W.2d at 816 (stating the

purpose of the rule is to clarify the issues before trial, avoid surprise, and

allow the litigants to prepare). Iowa Rule of Civil Procedure 1.503(4)(a)(3)

does not impose a duty to request supplementation—the duty is upon

the party answering the discovery request.          Third, Lawson is also

required to adhere to a pretrial or scheduling order.        Iowa R. Civ. P.

1.602(5) (“If a party or party’s attorney fails to obey a scheduling or

pretrial order, or if no appearance is made on behalf of a party at a

scheduling or pretrial conference, or if a party or party’s attorney is

substantially unprepared to participate in the conference, or if a party or
                                           13

party’s attorney fails to participate in good faith, the court, upon motion

or the court’s own initiative, may make such orders with regard thereto

as are just, and among others any of the orders provided in rule

1.517(2)(b)(2)–(4).”).     Pursuant to the Civil Trial Setting Conference

Memorandum, discovery was to be completed by June 13, 2008. In the

order continuing the trial in July, the deadlines were specifically not

extended.     Therefore, under the facts of this case, we find Lawson’s

excuse to be unavailing.

       The importance of the information sought is not disputed. “A party

defending a claim is clearly entitled upon appropriate pretrial request to

be informed of the amount of the claim.” Gordon v. Noel, 356 N.W.2d

559, 564 (Iowa 1984). This includes discovery of amounts claimed for

separate elements of damages. Id.

       The timing of the attempted response is also a factor.                        The

supplementation did not occur until the eleventh hour, just days before

trial. Finally, although the court could have considered a continuance, it

is significant that a prior continuance had been granted just months

earlier.

       Although other options may have been within its discretion, the

court’s order limiting Lawson from presenting any evidence of damages

not previously set forth in his interrogatory responses was not an abuse

of discretion. The supplementation came days before trial and after one

continuance. Kurtzhals was ready for trial and should not be expected to

do further discovery because of the late supplementation or endure

another continuance at that late date. We, therefore, affirm the district

court on the cross-appeal. 4

       4Lawson  makes a reference to the sanctions imposed on Lawson’s counsel in the
conclusion of his brief asserting that the trial court did not have jurisdiction to impose
sanctions after the case had been dismissed. We have inherent power to determine
                                         14

       IV. Disposition.

       We hold that the district court erred in concluding it had no

discretion to deny a motion for voluntary dismissal because a plaintiff

has an absolute right to dismiss a case without prejudice. We further

find that under the facts of this case, had the district court exercised its

discretion in granting the voluntary dismissal, it would have been an

abuse of discretion. We therefore remand this case to the district court

with directions to reinstate the case and conduct a new trial subject to

the court’s prior ruling limiting Lawson’s evidence of damages.                   We

further order that this case be tried prior to the refiled case. Finally, we

affirm the district court’s ruling on defendant’s motion in limine

prohibiting the admission of evidence on damages not timely provided

and its award of attorney fees.

        DISTRICT        COURT       JUDGMENT          AFFIRMED         IN     PART,

REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.




_______________________________
whether we have jurisdiction over the subject matter of the case before us. Tigges v.
City of Ames, 356 N.W.2d 503, 512 (Iowa 1984). We have previously held that a court
retains jurisdiction to impose sanctions even after a voluntary dismissal. Darrah, 436
N.W.2d at 54–55.
