                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1198
                           Filed September 11, 2019


MELISSA SADLER, Individually, and as Parent and Next Friend of S.S., A.S.,
Z.S., and I.S., Minor Children,
       Plaintiffs-Appellants,

vs.

POLLY PRIMUS and PATHWAYS BEHAVIORAL SERVICES, INC.,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Butler County, Linda M. Fangman,

Judge.



      Melissa Sadler appeals an adverse summary judgment ruling and dismissal

of her civil suit. AFFIRMED.




      John G. Daufeldt of Daufeldt Law Firm, P.L.C., Conroy, for appellants.

      Jason T. Madden and Caroline K. Bettis of Bradshaw, Fowler, Proctor &

Fairgrave, P.C., Des Moines, for appellees.



      Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                            2


MULLINS, Presiding Judge.

       In March 2017, Melissa Sadler, individually, and as parent and next friend

of her four minor children, filed a petition at law against several parties, including

Polly Primus and Pathways Behavioral Services, Inc. (Pathways defendants),

forwarding allegations of improper actions or failures to act in child-in-need-of-

assistance (CINA) proceedings.1 The claims against the Pathways defendants

included (1) failure to report child abuse or interfering with the reporting of child

abuse, (2) professional malpractice, and (3) infliction of emotional distress. In the

coming months, Sadler dismissed her claims against the CASA and the

prosecutors. Thereafter, trial was scheduled for August 21, 2018. In November

2017, the district court granted the DHS defendants’ motion to dismiss. Sadler

appealed this ruling.

       On March 23, 2018, while the appeal was pending, the Pathways

defendants filed a motion for summary judgment on a number of grounds. The

Pathways defendants argued, among other things, because Sadler failed to timely

designate expert witnesses, she should therefore be barred from presenting expert

testimony, and, consequently, she could not establish her claims as a matter of

law. The GAL filed a motion for summary judgment a few days later. On April 5,

almost two weeks after the Pathways defendants moved for summary judgment,

Sadler filed a disclosure of her expert witness. On April 9, at 10:41 a.m., the court

entered an order granting the pending motions for summary judgment. In its order,




1
 The initial defendants also included the Iowa Department of Human Services, its director,
a child protective worker, and a social worker (DHS defendants); two prosecutors; a
detective; a court-appointed special advocate (CASA); and a guardian ad litem (GAL).
                                            3


the court noted, “More than ten (10) days has passed and no Resistance has been

filed.” The court granted summary judgment as to the Pathways defendants and

the GAL as follows: “The Court, having reviewed all of the evidence provided with

the motions for summary judgment and the fact no resistance to the motions for

summary judgment were filed find the Defendants are entitled to judgment as a

matter of law.”2 Fifteen minutes after the court filed its order, Sadler filed motions

to continue trial and the deadline to disclose expert witnesses.              In the late

afternoon, Sadler filed a motion to extend her deadline to file a resistance to the

Pathways defendants’ motion for summary judgment.               On April 11, the court

denied the motion to extend the time for filing a resistance to the motion for

summary judgment, stating:

       The Motion for Summary Judgment was filed on March 23, 2018.
       Pursuant to Rule 1.981(3) “a party resisting the motion shall file a
       resistance within 15 days, unless otherwise ordered by the
       court . . . [.]” Therefore, a resistance must have been filed by April
       9, 2018, and no resistance was filed and no extension had been
       granted.

       On April 19, Sadler filed a motion to reconsider the orders granting summary

judgment and denying the request for an extension to resist summary judgment

and additionally requesting a ruling on the motion to extend the expert-witness

deadline. Therein, Sadler argued the April 9 order granting summary judgment

was premature because it was filed before the deadline to resist as stated in Iowa

Rule of Civil Procedure 1.981(3), the motion should not have been granted on the

merits, and the court should grant Sadler’s motion to extend the expert-witness



2
  The GAL’s motion is not at issue in this appeal. After the court granted the GAL’s motion
for summary judgment, Sadler dismissed her as a defendant.
                                          4


deadline. On April 24, Sadler supplemented her motion, forwarding challenges to

the merits of the other grounds asserted in the Pathways defendants’ motion for

summary judgment. On June 13, the court summarily denied the motions. A week

later, the detective filed a motion for summary judgment. Soon, Sadler dismissed

the detective as a defendant. On July 10, the court entered an order dismissing

the case, as the detective was the last remaining defendant. At this time, the

propriety of the district court’s grant of the DHS defendants’ motion to dismiss was

still pending on appeal. Again, Sadler appealed.

       On appeal, Sadler argues the court (1) improperly failed to allow her fifteen

days to respond to the defendants’ motion for summary judgment, (2) lacked

jurisdiction to entertain the motion when an appeal was pending, (3) abused its

discretion in denying her motion to extend expert-witness deadlines, and (4) erred

by dismissing the lawsuit when an appeal was pending concerning the propriety of

a motion to dismiss granted in favor of other defendants.

       We first consider whether the district court had jurisdiction to rule on the

Pathways defendants’ summary judgment motion while an appeal was pending

concerning the propriety of dismissal of the action against the DHS defendants.

We agree with Sadler that, “[a]s a general rule, a district court loses jurisdiction of

the merits of a controversy once an appeal is perfected.” State v. Formaro, 638

N.W.2d 720, 726 (Iowa 2002); accord Freer v. DAC, Inc., 929 N.W.2d 685, 688

(Iowa 2019). “An exception to this rule, however, permits the district court to retain

jurisdiction over disputes that are collateral to the subject matter of the appeal.”

Formaro, 638 N.W.2d at 726. The district court is allowed to “resolve matters

outside the issues on appeal.”      Id.   The pending appeal only concerned the
                                          5

propriety of the court’s ruling on the DHS defendants’ motion to dismiss. See

generally Sadler v. Iowa Dep’t of Human Servs., No. 17-1970, 2019 WL 1752651

(Iowa Ct. App. Apr. 17, 2019), further review denied (Aug. 21, 2019). Summary

judgment as to the Pathways defendants is clearly a matter outside of the issues

that were pending on appeal and, consequently, we conclude the court had

jurisdiction to entertain the motion. See Formaro, 638 N.W.2d at 726.

       We turn to Sadler’s argument that the court erred in ruling on the summary

judgment motion without providing her the full fifteen days to file a resistance. Iowa

Rule of Civil Procedure 1.981(3) affords a party “15 days, unless otherwise ordered

by the court,” to resist a motion for summary judgment. While we agree with Sadler

that she should have been allowed the full fifteen days, we find the error harmless

because, for the following reasons, we conclude the Pathways defendants would

have ultimately been entitled to judgment as a matter of law, regardless of whether

she was afforded an opportunity to file a resistance, upon their argument that

Sadler could not formulate a prima facie case of tort liability as to a licensed

professional for failing to timely disclose her expert witness.3

       This brings us to Sadler’s argument that the court abused its discretion in

denying her motion to extend expert-witness deadlines.             Sadler makes no

argument that any of her claims against the Pathways defendants did not require

expert testimony. Indeed, all of Sadler’s claims against the Pathways defendants

concern alleged breaches of professional duties. We review a denial of a motion




3
  Sadler also forwards arguments challenging the merits of the Pathways defendants’
other asserted grounds for summary judgment. We find it unnecessary to address those
arguments.
                                         6


to extend expert-witness deadlines for an abuse of discretion, our most deferential

standard of review. See Hill v. McCartney, 590 N.W.2d 52, 54 (Iowa Ct. App.

1998); see also State v. Roby, 897 N.W.2d 127, 137 (Iowa 2017). “Trial courts

have broad discretion in ruling on whether to extend the time allowed for parties to

designate expert witnesses under [section] 668.11, and the exercise of that

discretion will not be disturbed unless it was exercised on clearly untenable

grounds or to an extent clearly unreasonable.” Hill, 590 N.W.2d at 54–55.

       Plaintiffs in professional-liability cases against licensed professionals are

required to designate their experts within a certain timeframe. See Iowa Code

§ 668.11(1)(a) (2017). If a party fails to timely designate an expert, “the expert

shall be prohibited from testifying in the action unless leave for the expert’s

testimony is given by the court for good cause shown.” Id. § 668.11(2). “Good

cause under section 668.11 must be ‘more than an excuse, a plea, apology,

extenuation, or some justification for the resulting effect.’” Thomas v. Fellows, 456

N.W.2d 170, 172 (Iowa 1990) (quoting Donovan v. State, 445 N.W.2d 763, 766

(Iowa 1989)).

       In the motion to extend expert-witness deadlines, Sadler agreed her

deadline to disclose her experts passed roughly four months beforehand. In

support of her position that “good cause” existed to allow an extension, Sadler

simply argued the Pathways defendants would not be prejudiced by the late

disclosure and they did not seek discovery of Sadler’s expert. Sadler echoes these

arguments on appeal.      In determining whether good cause exists, “the court

considers three factors: (1) the seriousness of the deviation; (2) the prejudice to

the defendant; and (3) the defendant’s counsel’s actions.” Hill, 590 N.W.2d at 55.
                                         7


Here, the seriousness of the deviation clearly weighs in favor of denial of the

motion to extend the deadline. Compare Donovan, 445 N.W.2d at 766 (finding no

abuse of discretion in denial of extension request where “the time to designate

witnesses had run several months” before the request), with Hantsbarger v. Coffin,

501 N.W.2d 501, 505 (Iowa 1993) (finding abuse of discretion in denial of

extension request where “a complete designation was only delinquent for about

one week”).

       While “prejudice is a relevant factor in determining good cause,”

Hantsbarger, 501 N.W.2d at 505, “it is only one factor” and “[l]ack of prejudice, by

itself, does not excuse” a late designation. Nedved v. Welch, 585 N.W.2d 238,

241 (Iowa 1998). While we agree that the level of prejudice to the Pathways

defendants is not astounding, at the end of the day “we cannot ignore the

legislature’s intent to provide professionals relief from nuisance suits to avoid the

costs of extended litigation in frivolous cases.” Hantsbarger, 501 N.W.2d at 504.

We turn to the Pathways defendants’ counsel’s actions. While we agree counsel

should not “silently wait[] for the time period to pass and then” use the untimely

“designation to seek a prohibition of” expert testimony and pursue summary

judgment, id. at 505, that is not exactly what happened here. Here, the expert-

witness deadline had long passed when the Pathways defendants filed their

summary judgment motion.        Further, there is no requirement “that opposing

counsel must act as his or her ‘brother’s keeper.’” Id.

       We are unable to say the district court exercised its discretion on clearly

untenable grounds or to an extent clearly unreasonable. Consequently, we affirm
                                            8


the denial of Sadler’s motion to extend expert-witness deadlines and the grant of

summary judgment.

       We turn to Sadler’s final argument, that the court erred by dismissing the

lawsuit when an appeal was pending concerning the propriety of the grant of the

motion to dismiss in favor of the DHS defendants. Her position seems to be that

the DHS defendants were still technically defendants in the suit and the court

therefore should not have dismissed the case in its entirety. However, “[i]t is our

duty on our own motion to refrain from determining moot questions.” Homan v.

Branstad, 864 N.W.2d 321, 328 (Iowa 2015) (citation omitted). “A case is moot if

it no longer presents a justiciable controversy because the issues involved are

academic or nonexistent.” Id. (citation omitted). In determining whether an issue

is moot, we are entitled to review matters outside of the record on appeal. See,

e.g., Clarke Cty. Reservoir Comm’n v. Robins, 862 N.W.2d 166, 170 n.3 (Iowa

2015); Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 539 n.1 (Iowa 1997); In

re L.H., 480 N.W.2d 43, 45 (Iowa 1992).

       A review of matters outside the record discloses this court recently affirmed

the district court’s grant of the DHS defendants’ motion to dismiss. See generally

Sadler, 2019 WL 1752651, at *1–2.4 Consequently, we determine Sadler’s final

argument to be moot and we do not address it.

       We affirm the outcome of the district court proceedings.

       AFFIRMED.




4
  The supreme court denied Sadler’s application for further review; this court’s decision
affirming the district court’s grant of the DHS defendants’ motion to dismiss is therefore
final.
