                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1122
                               Filed June 20, 2018


SHANNON DUNCAN,
    Plaintiff-Appellant,

vs.

FORD MOTOR CREDIT, REPOSSESSORS, INC.
and BRUCE SHORES,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Winneshiek County, Margaret L.

Lingreen, Judge.



      Plaintiff appeals the district court’s grant of summary judgment to the

defendants based on the statute of limitations. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.

      Dennis G. Larson of Larson Law Office and Erik W. Fern of Putnam, Fern

& Thompson Law Office, P.L.L.C., Decorah, for appellant.

      Angela E. Dralle of Dorsey & Whitney, L.L.P., Des Moines, for appellee Ford

Motor Credit Company.

      Jace T. Bisgard and Dana L. Oxley of Shuttleworth & Ingersoll, P.L.C.,

Cedar Rapids, for appellees Repossessors, Inc. and Bruce Shores.



      Considered by Vogel, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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SCOTT, Senior Judge.

       Shannon Duncan appeals the district court’s grant of summary judgment to

the defendants based on the statute of limitations. We affirm the district court’s

decision finding Duncan’s claim of conversion is barred by the five-year statute of

limitations in Iowa Code section 614.1(4) (2015). On Duncan’s claim of civil

extortion, the court erred by applying the two-year statute of limitations in section

614.1(2). Duncan’s claim of civil extortion is timely under the five-year statute of

limitations in section 614.1(4), and the district court improperly granted summary

judgment on this issue. We remand to the district court for further proceedings on

the issue of civil extortion.

       I.      Background Facts & Proceedings

       On March 5, 2008, Duncan purchased a 2008 Ford Edge from Decorah

Auto Center, Inc., with financing through Ford Motor Credit (FMC). She made

payments from April 19, 2008, until August 19, 2010. Duncan received notice she

owed $1871.94, due by November 19, 2010. Duncan stated she paid this amount

in a timely fashion, but on November 19, 2010, Bruce Shores of Repossessors,

Inc. took possession of the vehicle.

       On November 27, 2010, Duncan received notice FMC intended to sell the

Ford Edge. Duncan told FMC the vehicle had been wrongfully repossessed and

demanded the return of the vehicle. Duncan paid the remainder of the loan,

$22,196.28, on March 11, 2011. FMC, Repossessors, and Shores did not return

the vehicle to Duncan. She stated they told her they would not return the vehicle

to her unless she signed a release of liability for the wrongful taking.
                                         3


       Duncan was able to retrieve the vehicle on June 17, 2011, without signing

a release. She found FMC, Repossessors, or Shores had retained her personal

property from the vehicle. Also, the Ford Edge had been damaged and Duncan

incurred expenses in repairing it.

       Duncan filed a petition on December 16, 2015, against FMC,

Repossessors, and Shores, raising claims of conversion and civil extortion. FMC

filed a partial motion for summary judgment, claiming the conversion claim was

barred by the five-year statute of limitations found in section 614.1(4). Duncan

resisted the motion. The district court found the conversion occurred on November

19, 2010, when the vehicle was taken from Duncan.            The court concluded

Duncan’s claim of conversion was barred under the statute of limitations and

granted FMC’s partial motion for summary judgment.         The court also denied

Duncan’s motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The court

subsequently granted a request by Repossessors and Shores for partial summary

judgment on this issue as well.

       FMC filed a second partial motion for summary judgment, claiming

Duncan’s civil extortion claim was barred by the two-year statute of limitations set

by section 614.1(2). Repossessors and Shores joined in the motion. Duncan

resisted the partial motion for summary judgment.         The district court found

Duncan’s action arose in June 2011, when she recovered her vehicle, and her

petition, filed in December 2015, was outside the two-year statute of limitations in

section 614.1(2). The court granted the defendants’ motion for summary judgment

on the civil extortion claim. The court denied Duncan’s rule 1.904(2) motion.

Duncan now appeals the district court’s decisions.
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      II.    Standard of Review

      We review a district court decision granting summary judgment for the

correction of errors of law. Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d

802, 806 (Iowa 2011). Summary judgment is appropriate only when the entire

record demonstrates there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Stevens

v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). We review the

evidence in the light most favorable to the nonmoving party. Merriam v. Farm

Bureau Ins., 793 N.W.2d 520, 522 (Iowa 2011).

      III.   Conversion

      Duncan claims the district court erred in finding her conversion claim was

barred by the statute of limitations. She states that while she was aware her Ford

Edge was repossessed on November 19, 2010, she was not aware the taking was

wrongful at that time. She states she requested FMC to provide her with legal

authority for taking her vehicle, and it was not until December 16, 2010, that she

learned FMC had no intention to provide her with legal authority and she realized

the taking was wrongful.     Duncan alleges her cause of action accrued on

December 16, 2010, making her petition, filed on December 16, 2015, timely.

      Duncan also points out the defendants wrongfully kept possession of her

vehicle from December 16, 2010, to June 17, 2011. She states she repeatedly

demanded the return of her vehicle.       Duncan asserts there was continuous

conversion during this time and under the continuous tort doctrine the defendants

should be liable for continuing to retain her vehicle after December 16, 2010.
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       Section 614.1(4) provides a five-year statute of limitations for actions

“founded on unwritten contracts, those brought for injuries to property, or for relief

on the ground of fraud.” This five-year statute of limitations applies to conversion

claims. See Rieff v. Evans, 630 N.W.2d 278, 296 (Iowa 2001). “[A] statute of

limitations sets forth the time within which an accrued claim must be asserted in

court.” Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 90 (Iowa 2002).

       In general, “a statute of limitations runs from the accrual of a cause of

action.” Id. The elements of a claim of conversion are: (1) ownership by the

plaintiff or other possessory right in the plaintiff greater than that of the defendant;

(2) exercise of dominion or control over property by defendant inconsistent with,

and in derogation of, plaintiff’s possessory rights thereto; and (3) damage to

plaintiff. In re Estate of Bearbower, 426 N.W.2d 392, 394 n.1 (Iowa 1988).

       “Conversion is defined as a distinct act of dominion wrongfully exerted over

another’s personal property in denial of or inconsistent with his title or rights

therein, or in derogation, exclusion or defiance of such title or rights.” Blessing v.

Norwest Bank Marion, N.A., 429 N.W.2d 142, 144 (Iowa 1988).                   Because

conversion is a distinct act, we conclude the continuous tort doctrine does not

apply here.

       We determine the district court did not err in its conclusion the conversion

occurred on November 19, 2010, when the Ford Edge was taken from Duncan’s

possession by the defendants, in derogation of Duncan’s possessory rights,

causing her damages because she no longer had possession of her vehicle.

“Actual possession at the time of conversion is sufficient to enable the plaintiff to

maintain the action.” Welke v. City of Davenport, 309 N.W.2d 450, 452 (Iowa
                                           6


1981). Because the conversion occurred on November 19, 2010, the petition, filed

on December 16, 2015, was beyond the five-year statute of limitations in section

614.1(4). We conclude the district court did not err in granting summary judgment

to the defendants on this ground.

       IV.    Civil Extortion

       Duncan claims the district court erred by finding civil extortion involves a

personal injury so the two-year statute of limitations in section 614.1(2) applies.

She asserts the court should have applied the five-year statute of limitations found

in section 614.1(4), which applies to injuries to property and fraud. She states her

claim involved property lost through extortion.

       Under section 614.1(2) there is a two-year statute of limitations for actions

“founded on injuries to the person or reputation, including injuries to relative rights,

whether based on contract or tort, or for a statute penalty.” On the other hand, the

five-year statute of limitations in section 614.1(4) applies to actions “founded on

unwritten contracts, those brought for injuries to property, or for relief on the ground

of fraud, . . . and all other actions not otherwise provided for in this respect.”

       In order to determine the appropriate limitations period for an action, we

“focus on ‘the actual nature of the action.’” Hallett Constr. Co. v. Meister, 713

N.W.2d 225, 230 (Iowa 2006) (citation omitted). “This determination turns on the

nature of the right sued upon and not on the elements of relief sought for the claim.”

Venard v. Winter, 524 N.W.2d 163, 165 (Iowa 1994).

       The criminal offense of extortion gives rise to a civil cause of action for

extortion. Hall v. Montgomery Ward & Co., 252 N.W.2d 421, 424 (Iowa 1977); see

also French v. Foods, Inc., 495 N.W.2d 768, 772 (Iowa 1993) (“[W]e recognized a
                                           7


cause of action for violation of the extortion section . . . .”); Zohn v. Menard, Inc.,

598 N.W.2d 323, 329 (Iowa Ct. App. 1999) (noting Iowa had “recognized a civil

cause of action for violation of the criminal extortion statute”).

       The criminal offense of extortion is defined in section 711.4(1), as follows:

               A person commits extortion if the person does any of the
       following with the purpose of obtaining for oneself or another
       anything of value, tangible or intangible, including labor or services:
               a. Threatens to inflict physical injury on some person, or to
       commit any public offense.
               b. Threatens to accuse another of a public offense.
               c. Threatens to expose any person to hatred, contempt, or
       ridicule.
               d. Threatens to harm the credit or business or professional
       reputation of any person.
               e. Threatens to take or withhold action as a public officer or
       employee, or to cause some public official or employee to take or
       withhold action.
               f. Threatens to testify or provide information or to withhold
       testimony or information with respect to another’s legal claim or
       defense.
               g. Threatens to wrongfully injure the property of another.

       In the petition, the issue of civil extortion is based on Duncan’s claim the

defendants “continued their conversion of Plaintiff, Shannon Duncan’s automobile

and personal property upon their requirement that she execute a Release of

liability against them.” Therefore, Duncan’s cause of action is a claim of civil

extortion based on a violation of section 711.4(1)(g), a threat “to wrongfully injure

the property of another.” Duncan asserts the defendants threatened to continue

to hold her vehicle until she released them from liability for wrongfully taking the

vehicle.

       Looking at “the actual nature of the action,” we conclude Duncan’s civil

extortion claim alleges an injury to property, and we determine the five-year statute

of limitations in section 614.1(4) should be applied. See Hallett Constr., 713
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N.W.2d at 230. The district court found the civil extortion claim arose in June 2011,

when Duncan was able to retrieve her vehicle. The petition, filed on December 16,

2015, is timely under the five-year statute of limitations. We conclude the district

court improperly granted summary judgment on the issue of civil extortion on the

ground the claim was barred by the statute of limitations.

       In the motion for summary judgment, the defendants also claimed Duncan

failed to state a claim of civil extortion. The district court denied the defendants’

claims on this issue. The elements of civil extortion are: (1) one or more of the

defendants, with the purpose of obtaining for themselves or another, anything of

value, threatened to wrongfully injure the property of another; (2) the threat was

communicated to and directed toward plaintiff; (3) the defendants’ actions were the

proximate cause of plaintiff’s damages; and (4) the amount of damages. See

Becker v. Longinaker, No. 09-0833, 2010 WL 1578400, at *9 (Iowa Ct. App.

Apr. 21, 2010). We find the district court did not err in concluding Duncan’s petition

adequately raised a claim of civil extortion.

       We affirm the district court’s decision finding Duncan’s claim of conversion

is barred by the five-year statute of limitations in section 614.1(4). On Duncan’s

claim of civil extortion, the court erred by applying the two-year statute of limitations

in section 614.1(2). Duncan’s claim of civil extortion is timely under the five-year

statute of limitations in section 614.1(4), and the district court improperly granted

summary judgment on this issue. We remand to the district court for further

proceedings on the issue of civil extortion.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
