                     IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1860
                              Filed October 24, 2018


ANDREW GERTH,
    Plaintiff-Appellant,

vs.

IOWA BUSINESS GROWTH, INC. and DAN ROBESON,
     Defendants-Appellees.
________________________________________________________________


        Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



        The plaintiff appeals from the partial dismissal of one lawsuit and the

complete dismissal of another; both involve allegations of discrimination against

his former employer and supervisor. AFFIRMED IN PART AND REVERSED IN

PART.



        Erik S. Fisk (until withdrawal) and John F. Fatino of Whitfield & Eddy, PLC,

Des Moines, for appellant.

        Abigail L. Thiel and Gary R. Fischer of Simpson, Jensen, Abels, Fischer &

Bouslog, PC, Des Moines, for appellees.



        Heard by Danilson, C.J., and Potterfield and Doyle, JJ.
                                              2


POTTERFIELD, Judge.

        Andrew Gerth appeals the partial dismissal of his second lawsuit (No.

LACL138027) and the complete dismissal of his third lawsuit (No. LACL138196)

by the district court. Both of these lawsuits and a first lawsuit—which is the subject

of another opinion filed today—relate to Gerth’s employment with Iowa Business

Growth, Inc. and supervisor Dan Robeson.1

I. Background Facts and Proceedings.

        Gerth worked for the defendants from August 2014 until May 2016.

        First Lawsuit. While still employed by the defendants, Gerth filed his first

complaint—complaint        number      02-16-68599—with         the   Iowa    Civil   Rights

Commission (ICRC).2 The commission issued a right-to-sue letter in September

2016.    Based on this first right-to-sue letter, Gerth filed his first lawsuit on

November 15.3 In the lawsuit, Gerth alleged age discrimination, a hostile work

environment, and retaliation. Regarding his claim of age discrimination, Gerth

specifically alleged:

               Andrew suffered several ongoing adverse employment
        actions, in that he was disciplined for acting like a “millennial,”
        instructed by his superior on how to use a urinal, monitored and
        subjected to intense scrutiny by his superiors, accused of closing his
        office door to make “personal calls” at work despite never actually
        having done so, and disciplined for closing his door to work when
        other employees were not.




1
  We refer to Iowa Business Growth, Inc. and Robeson collectively as the defendants.
2
  We do not have a copy of the complaint in the record before us.
3
  Gerth’s petition does not reference the complaint number, but the only right-to-sue letter
he had received at the time he filed his first lawsuit was the first; we treat it as the basis
for his first lawsuit.
                                             3


He also argued a violation of Iowa Code chapters 91A and 91B (2016), claiming

the defendants had unreasonably denied his request to provide him his personnel

and wage records from the duration of his employment.

       On May 30, the district court dismissed without prejudice Gerth’s first lawsuit

for failure to timely serve the defendants pursuant to Iowa Rule of Civil Procedure

1.302(5). Gerth appealed the dismissal, which is the issue in Gerth v. Iowa

Business Growth. Inc., No. 17-1018, 2018 WL ______ (Iowa Ct. App. Oct. 24,

2018)—also decided today.

       Second Lawsuit.        Gerth filed his second complaint with the ICRC on

September 30, 2016—complaint number 09-16-69598. In his second complaint,

Gerth alleged both age and disability discrimination as well as the denial of an

accommodation and constructive discharge. The ICRC issued a second right-to-

sue letter on March 8, 2017. On May 26, Gerth filed his second lawsuit. 4 In it,

Gerth alleged disability discrimination, harassment, retaliation, and a hostile work

environment.

       On June 21, less than a month after the district court dismissed his first

lawsuit, Gerth amended his second lawsuit to add a general claim of age

discrimination.

       In July, the defendants filed a pre-answer motion to dismiss part of the

second lawsuit. They argued that the added age-discrimination claim arose from



4
  Similarly, Gerth’s second lawsuit does not reference his second complaint to the ICRC,
but as his first right-to-sue letter had expired ninety days after he received it, see Iowa
Code § 216.16(4), it expired in December 2016 and cannot be the basis for his second
lawsuit. Moreover, in his resistance to the defendants’ partial motion to dismiss the second
lawsuit, Gerth asserted that the second lawsuit was based upon the second ICRC
complaint.
                                            4


Gerth’s first ICRC complaint and the resulting right-to-sue letter had expired in

early December 2016—several months before Gerth added the claim to his second

lawsuit in June 2017. As part of their argument, the defendants noted that the

second lawsuit did not contain an age-discrimination claim until Gerth amended it

in June, after the district court had dismissed Gerth’s first petition. The defendants

asked the court to dismiss with prejudice Gerth’s age-discrimination claim from the

second lawsuit.

       In his response, Gerth disputed the defendants’ claim that Gerth’s first ICRC

complaint contained “all claims concerning age-related discrimination from the

beginning of [his] employment” with the defendants. He pointed out that in the

second ICRC complaint, he had responded “yes” to the following question: “If your

complaint involves employment or credit, do you believe you were discriminated

against because of your age?” Additionally, in an apparent concern that the district

court would find his amendment to the second petition untimely for being added

more than ninety days after the second right-to-sue letter was issued, Gerth argued

that his June 21 amendment of the lawsuit related back to the original May 26 filing

date, pursuant to Iowa Rule of Civil Procedure 1.402(5). Alternatively, he argued

the savings statute—Iowa Code section 614.10—prevented this age discrimination

claim in his lawsuit from being untimely.

       In a reply, the defendants asked the court to consider their partial motion to

dismiss as a partial motion for summary judgment, claiming it was “proper practice

when matters outside the pleadings are relied upon in support of the motion to

treat the motion as one for summary judgment.” The defendants also urged the

court to dismiss the age-discrimination claim in the second lawsuit “because the
                                           5


documents filed with the Court for consideration are the type of which the court

make take judicial notice.” It is unclear which specific documents the defendants

claimed were appropriate for judicial notice.

       Third Lawsuit. On June 20, 2017, Gerth filed a third lawsuit. The petition

for the third lawsuit was an exact duplicate of the petition for the first lawsuit, which

had been dismissed less than one month earlier.

       In July, the defendants filed a motion to dismiss the third lawsuit, arguing

Gerth’s claim about age discrimination was barred because it related back to his

first right-to-sue letter, which had expired in December 2016, and because his

claim for damages under Iowa Code chapters 91A and 91B was not a claim for

which relief could be granted as no private cause of action existed under those

chapters.

       Gerth resisted, arguing that because the first lawsuit was timely filed, the

third lawsuit—which was just a refiling of the first—was saved by the savings

statute in section 614.10. He also claimed a private right of action did exist under

chapter 91B.

       The defendants replied that Gerth could not rely on the savings statute since

the first lawsuit was dismissed due to his negligent prosecution. Additionally, they

asserted that the district court did not have jurisdiction to decide the claims in the

third lawsuit since they were identical to those in the first lawsuit, which was then

pending appeal with the Iowa Supreme Court.

       Hearing regarding Second and Third Lawsuit. Presumably because the

defendants filed a motion to consolidate the second and third lawsuit, which Gerth

did not resist, on August 17, 2017, all of the various motions and filings in both the
                                         6


second and third lawsuits were heard in a combined hearing. The hearing was

unreported.

       Ruling on Second Lawsuit. Regarding Gerth’s second lawsuit, the district

court granted the defendants’ partial motion to dismiss, resulting in the dismissal

with prejudice of Gerth’s age-discrimination claim that was added in June. In

reaching this conclusion, the court ruled that if the age-discrimination claim in

Gerth’s second lawsuit was based on the facts contained in Gerth’s first complaint

to the ICRC, then the lawsuit was untimely, as the expiration of the first right-to-

sue letter occurred in December 2016—several months before the second lawsuit

was filed.

       The court found it equally problematic if Gerth’s age-discrimination claim in

the second lawsuit was based upon his second ICRC complaint, ruling that Gerth

could not “resurrect” his claims by raising them a second time to the commission.

In reaching this conclusion, the court presupposed that the two age-discrimination

complaints were based on the same underlying facts, as the court relied upon Iowa

Code section 216.16(4), which provides in part, “If a complainant obtains a release

from the commission under section 3, the commission is barred from further action

on that complaint.” Additionally, the court cited federal case law precedent that

referenced “unambiguous precedent holding that if the proponent of a

discrimination claim fails to sue within the specified ninety-day period, his claim

expires and is not resuscitated by the filing of a second administrative charge.”

Rivera-Diaz v. Humana Ins. of Puerto Rico, Inc., 748 F.3d 387, 391 (1st Cir. 2014)

(citation omitted).   The court found Gerth’s “age-related claims were solely

contained in [his] first complaint before the ICRC.”
                                           7


       While the court granted the motion to dismiss in regard to the age-

discrimination claims of the second lawsuit, Gerth’s claim regarding disability

discrimination was never at issue. It remains as part of his second lawsuit.

       Ruling on Third Lawsuit. The district court granted the defendants’ motion

to dismiss the third lawsuit “because it is a duplicate of the first district court case

[Gerth] filed.” The court ruled that Gerth’s first lawsuit could not be “revived” as

the third lawsuit because the savings provision in section 614.10 was not

applicable. The court found that Gerth’s argument about the savings clause failed

for alternative reasons. First, it ruled his argument failed because he could not

prove he was not negligent in the prosecution of the first lawsuit. Alternatively, the

court found that the savings clause was inapplicable because the dismissal of

Gerth’s first lawsuit was still pending appeal at the time he filed his third lawsuit.

In other words, there had been no final ruling on Gerth’s first lawsuit; it had not

failed—which the court found was a necessary prerequisite to asserting the

savings clause—at the time he filed his third lawsuit.

       Because the court dismissed with prejudice the third lawsuit in its entirety,

the district court found that the defendants’ motion to consolidate the two lawsuits

was moot.

       Gerth appeals.

II. Standard of Review.

       “Our ruling on a motion to dismiss is limited to correction of errors at law.”

Wetter v. Dubuque Aerie No. 568, Fraterrnal Order of the Eagles, 588 N.W.2d 130,

131 (Iowa Ct. App. 1998). “Any decision to sustain or overrule a motion to dismiss

must rest on legal grounds.” Id. at 131–32. In the alternative, we also review
                                         8

rulings on motion for summary judgment for correction of errors at law. Madden v.

City of Eldridge, 661 N.W.2d 134, 136 (Iowa 2003).

III. Discussion.

        A. Second Lawsuit.

        Gerth appeals the dismissal of part of his second lawsuit. He maintains the

court was wrong to dismiss his age-discrimination claims from his second lawsuit,

asserting that there was not enough information in the record before the district

court for the court to determine that the claims in the second lawsuit were based

upon the same underlying facts as the age-discrimination claims in the dismissed

first lawsuit.

        An issue neither party raises, but one we consider nonetheless, is whether

Gerth has a right to appeal the partial dismissal of his second lawsuit. “Appeals

are available as of right only from final orders, and we lack jurisdiction of appeals

from interlocutory orders unless permission to appeal is granted.”        Rowen v.

LeMars Mut. Ins. Co. of Iowa, 357 N.W.2d 579, 581 (Iowa 1984); see also Iowa R.

App. P. 6.101(1)(b), .103, .104(1)(a), .108. Because this is a jurisdictional issue,

we may raise it sua sponte. See In re M.T., 714 N.W.2d 278, 281 (Iowa 2006)

(“Questions concerning this court’s jurisdiction may be raised upon the court’s own

motion.”); River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa

1984) (“Even though neither party has questioned our jurisdiction to hear and

decide this case, we will sua sponte dismiss an appeal that is neither authorized

by our rules nor permitted by court order.”). And the defendants’ failure to file a

motion to dismiss the appeal “does not confer upon us jurisdiction to entertain” the

appeal. Forte v. Schlick, 85 N.W.2d 549, 552 (Iowa 1957).
                                           9


       While “[t]he definition of and the distinction between the terms ‘final order’

and ‘interlocutory order’ have been made on many occasions, . . . the application

of these pronouncements has been difficult.” In re Troester’s Estate, 331 N.W.2d

123, 125 (Iowa 1983). However, “look[ing] to the purpose of the rules, which is to

prevent delay by piecemeal appeals,” our supreme court has “generally held that

a ruling is interlocutory unless it disposes of all the issues and parties.” Id. at 126.

Neither a partial dismissal nor a ruling granting partial summary judgment is a final,

appealable order. See Decatur-Moline Corp. v. Blink, 283 N.W.2d 347, 349 (Iowa

1979) (ruling an order was not final because it was “analogous to the cases

involving dismissal of only part of a petition.        Such partial dismissal is an

interlocutory order and is not appealable”); see also River Excursions, 359 N.W.2d

at 477 (“Ordinarily a summary judgment that is not dispositive of the entire care is

not a final judgment for purposes of appeal. A ruling is not final when the trial court

intends to act further on the case before signifying its final adjudication of the

issues.”).

       However, we have the authority to treat a notice of appeal from a non-final

order as an application for interlocutory appeal and grant the application. See Iowa

R. App. P. 6.108. We grant the application and proceed to the merits.

       Gerth challenges the district court’s ruling that he was attempting to

resurrect the same claim from his first complaint to the ICRC with his second

complaint to the ICRC. Gerth does not challenge the case law cited by the district

court, which prevents him from raising a complaint based on the same underlying

facts two separate times. See, e.g., Cintron-Garcia v. Supermercados Econo, Inc.,

818 F. Supp. 2d 500, 507–08 (D.P.R. 2011) (“An employee who fails to bring a
                                            10


complaint in federal court following a receipt of a right-to-sue-letter within the time

period allowed under Title VII is barred from ever bringing a federal claim related

to that EEOC charge even if a subsequent EEOC charge and right-to-sue letter

reference the earlier acts.”); see also Pippen v. State, 854 N.W.2d 1, 39 (Iowa

2014) (“The Iowa bench and bar has long understood federal authorities provide

guidance to interpret the ICRA.”).

       Rather, he argues the record before the district court was insufficient for the

district court to make the determination his claims were based on the same

underlying facts. In his appellate brief,5 he categorizes the age-discrimination

claims in his first lawsuit and the age-discrimination claims in his second lawsuit

as “similar, but distinct.”6 The defendants respond that the documents filed with

their motion to dismiss demonstrate that the age-related claims in the first lawsuit

covered the entirety of Gerth’s employment and so must encompass every action

during that employment.        Gerth did allege age discrimination throughout the

entirety of his employment with defendants.

       In reviewing the record before us, including Gerth’s resistance to the

defendants’ motion to dismiss and his sur-reply to the defendants’ reply in support

of their motion to dismiss, Gerth never argued before the district court that the age-

discrimination claims in the first and second ICRC complaints were based on

discrete acts. We acknowledge Gerth’s argument that his second lawsuit was


5
  Without a record in the district court, we are unable to say whether this argument was
made at the unreported hearing.
6
  While Gerth characterizes the two claims as similar but distinct, his appellate brief does
not contain a cite to the record for documentation to support the assertion. See Iowa R.
App. P. 6.903(2)(g)(3) (requiring the appellant to support his or her “contentions and
reasons for them with citations to the authorities relied on and references to the pertinent
parts of the record”).
                                           11


based upon his second complaint to the ICRC and the corresponding right-to-sue

letter, but he never asserted that the two complaints were based upon distinct

actions taken by the defendants. Our rules of error preservation preclude Gerth

from offering an argument on appeal regarding why his age-discrimination claim in

his second lawsuit should survive dismissal that he did not first raise to the district

court. See Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 288 (Iowa 2000)

(“Issues not raised before the district court . . . cannot be raised for the first time

on appeal.”); Evans v. Rosenberger, 181 N.W.2d 152, 155 (Iowa 1970) (“We

consider only assigned errors and review only those matters which were properly

raised and preserved below.”); cf. State v. Hepperle, 530 N.W.2d 735, 738 (Iowa

1995) (stating the defendant is bound by the objection actually made at trial; the

defendant “cannot amplify or change the objection on appeal”).7

       Because Gerth does not challenge the district court’s actual reason for

dismissing his age-discrimination claims in his second lawsuit, and because the

argument he makes on appeal was not presented to the district court on this

record, we affirm the district court’s partial dismissal of Gerth’s second lawsuit.




7  Gerth’s only other argument regarding the dismissal of his age-discrimination claim in
his second lawsuit is his assertion that the June 2017 amendment to the second lawsuit
adding the age-discrimination claim was not untimely, as the amendment “relates back”
to the initial filing date, pursuant to Iowa Rule of Civil Procedure 1.402(5). Based upon
our reading of the record, the defendants never claimed otherwise and, accordingly, the
district court never ruled on the issue. Any argument about timeliness of the second
lawsuit appears to stem from the argument that it was filed in some connection with the
first ICRC complaint—which expired several months earlier—rather than any concern that
the amendment otherwise affected the timeliness of the suit. We do not consider this
issue further.
                                             12


Gerth’s claims regarding disability discrimination remain as part of his second

lawsuit.8

       B. Third Lawsuit.

       Gerth challenges the district court’s dismissal of his third lawsuit, a copy of

his first lawsuit. He argues the savings statute of section 614.10 is applicable to

revive his dismissed first lawsuit.

       Iowa Code section 614.10 provides, “If, after the commencement of an

action, the plaintiff, for any cause except negligence in its prosecution, fails therein,

and a new one is brought within six months thereafter, the second shall, for the

purposes herein contemplated, be held a continuation of the first.”               The four

prerequisites for claiming relief under the statute are: “(1) failure of a former action

not caused by the plaintiff's negligence; (2) the commencement of a new action

brought within six months thereafter; (3) the parties must be the same; and (4) the

cause of action must be the same.” Wetter, 588 N.W.2d at 132. Gerth has the

burden of establishing the elements. See id.

       The district court ruled that section 614.10 was inapplicable to Gerth’s third

lawsuit because he could not prove the first element—that the failure of his first

lawsuit was not caused by his negligent prosecution. We agree with the district

court. In Central Construction Company v. Klingensmith, 127 N.W.2d 654, 657

(Iowa 1964), our supreme court considered whether the plaintiff’s failure to avoid

dismissal of their case based on the want-of-prosecution rule constituted

negligence within the meaning of section 614.10. The court found that it did,


8
  To the extent the district court allowed other claims—such as retaliation—to remain in
the second lawsuit, claims were ultimately dismissed with the dismissal of the third lawsuit.
                                           13


stating, “Negligence in prosecution of an action is surely inherent when the plaintiff

is lacking in diligence and so suffers a dismissal.” Cent. Constr., 127 N.W.2d at

657. We believe Gerth’s failure to timely serve the defendants can similarly be

considered negligence in prosecution, as his lack of diligence resulted in the late

service. Thus, we agree with the district court that section 614.10 does not allow

Gerth to recommence his first lawsuit.9

IV. Conclusion.

       Because Gerth does not challenge the district court’s actual reason for

dismissing his age-discrimination claims in his second lawsuit, and because the

argument he makes on appeal was not presented to the district court on this

record, we affirm the district court’s partial dismissal of Gerth’s second lawsuit (No.

LACL138027).      Additionally, because the savings statute is not applicable to

Gerth’s third lawsuit (No. LACL138196), we affirm the district court’s dismissal.

However, we reverse in part because each of the dismissals should be without

prejudice.

       AFFIRMED IN PART AND REVERSED IN PART.




9 Gerth also argues the district court was wrong in its determination that Iowa Code
chapters 91A and 91B do not provide a private right of action for damages for the
defedants’ failure to provide an employee with their personnel records. Because the issue
of whether the savings statute applied was dispositive of Gerth’s entire third lawsuit, we
need not consider whether he had a private right of action to bring a claim for damages
under chapters 91A and 91B. Moreover, even if the issue was still relevant, the district
court never ruled on it, so it is has not been preserved for our review, and we would not
consider it further. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.”).
