                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1887
                            Filed October 14, 2015

IN THE MATTER OF THE ESTATE OF
JERROLD WANEK

JAYSEN MCCLEARY,
     Claimant-Appellant,

vs.

DOUGLAS GULLING, Executor of the
Estate of JERROLD WANEK,
      Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      A probate claimant alleging legal malpractice appeals the grant of

summary judgment to the estate of the deceased attorney. AFFIRMED.



      David J. Hellstern, Louis R. Hockeberg, and Samantha J. Gronewald of

Sullivan & Ward, P.C., West Des Moines, for appellant.

      John W. Wharton and Joseph M. Barron of Peddicord, Wharton, Spencer,

Hook, Barron & Wegman, L.L.P., West Des Moines, for appellee.



      Heard by Danilson, C.J., and Vogel and Tabor, JJ.
                                           2



TABOR, Judge.

       Jaysen McCleary brought a claim for legal malpractice in probate against

the estate of his bankruptcy attorney Jerrold Wanek. The district court decided

McCleary did not timely designate expert witnesses and granted summary

judgment in favor of Wanek’s estate. McCleary appeals claiming the rule on

designating expert witnesses in professional liability actions, Iowa Code section

668.11 (2013), does not apply to this probate matter. He also argues the grant of

summary judgment was improper. Because section 668.11 does apply to these

proceedings and the record reveals no genuine issues of material fact, we affirm

the rulings of the district court.

I.     Background Facts and Proceedings

       Attorney Wanek represented McCleary in federal bankruptcy proceedings

until Wanek’s death on January 25, 2012. On July 20, 2012, McCleary filed a

claim for $166,000 against Wanek’s estate contending Wanek breached his

fiduciary duty.   McCleary alleged Wanek’s negligence in allowing the sale of

McCleary’s interest in a claim against Reliastar Life Insurance Co. in the amount

of $100,000 and the loss of tax refunds in the amount of $66,000. The estate

denied the claims.

       During the federal bankruptcy proceedings, the trustee sold McCleary’s

interest in the litigation against Reliastar for $2,500.1 Wanek did not object to the



1
  The underlying claim against Reliastar was the subject of separate federal litigation.
McCleary’s mother had a life insurance policy in the amount of $100,000 with Reliastar.
After her death, Reliastar claimed the policy was void and McCleary sued as both an
individual and representative of his mother’s estate. Wanek did not represent McCleary
in this litigation.
                                          3



sale but following his death, McCleary, serving as his own attorney, filed an

objection to the sale.2 The sale went through over the objection.

       On the tax refund claim, McCleary alleged Wanek advised him that he

would not be able to retain his tax refunds unless he filed his returns before filing

the bankruptcy petition. But the bankruptcy petition was filed first. As a result,

the trustee claimed $66,000 in tax refunds as assets. A letter from the trustee to

McCleary indicated he would have had to forfeit the refund money even if the tax

returns had been filed before the bankruptcy petition.

       In September, McCleary filed an amended claim in the amount of

$1,953,501.76 plus interest—which was the original amount claimed plus

$1,787,501.76 for allowing the sale or release of a claim against Deutsche

Bank.3 McCleary requested a hearing on the amended claim. On March 29,

2013, Wanek’s estate filed an answer denying the amended claim. On May 14,

2013, the district court set a trial scheduling conference for May 30, 2013.

       McCleary and his counsel failed to appear at the May 30 conference—

later claiming problems with the conversion of the case from paper filings to the

electronic document management system (EDMS).4 The court entered another

scheduling order on February 14, 2014, setting trial for July 28, 2014. Discovery

ensued. Wanek’s estate filed a motion to continue, citing McCleary’s failure to

respond to discovery requests. The court granted the motion on June 27, 2014,


2
  After Wanek’s death, McCleary, who is a licensed attorney, represented himself in the
bankruptcy action.
3
  McCleary has abandoned this claim on appeal. He now urges only his malpractice
claims stemming from the tax returns and the failure to object in the Reliastar matter.
4
  This case was converted to EDMS on May 21, 2013.
                                         4



and set a new trial date for November 3, 2014. McCleary had not designated

expert witnesses.      The new trial order stated the time for expert witness

designation had closed.

         On July 17, 2014, McCleary filed a motion to extend deadlines to

designate expert witnesses claiming he had not been given any “legitimate”

opportunity to designate an expert and he was currently in the process of

retaining an expert.    Wanek’s estate resisted.    On July 31, 2014, McCleary

designated two expert witnesses.         Wanek’s estate moved to strike the

designation and also filed a motion for summary judgment that was resisted by

McCleary.

         Following a hearing, on September 19, 2014, the court ruled on the motion

to extend deadlines.      The court found McCleary was required to designate

experts under Iowa Code section 668.11, “within one hundred eighty days of the

defendant’s answer unless the court for good cause not ex parte extends the

time of disclosure.” The court found no good cause to extend the deadline and

denied the motion. On October 13, 2014, the court granted the estate’s motion

for summary judgment.

         McCleary now appeals.

II.      Scope and Standards of Review

         We review district court rulings concerning witness designation deadlines

for an abuse of discretion. Hantsbarger v. Coffin, 501 N.W.2d 501, 506 (Iowa

1993).
                                             5



         We review a district court’s summary judgment ruling for correction of

legal error. Boelman v. Grinnell Mut. Reins. Co., 826 N.W.2d 494, 500 (Iowa

2013). Summary judgment is appropriate when the record reveals 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); see Emp’rs Mut. Cas. Co. v. Van Haaften, 815

N.W.2d 17, 22 (Iowa 2012). When reviewing the grant of summary judgment, we

view the facts in the light most favorable to the nonmoving party, and give the

nonmoving party every legitimate inference that can be reasonably deduced from

the record. Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 774 (Iowa

2013).

III.     Real Party in Interest

         We begin by considering whether McCleary is the real party in interest to

the legal malpractice claims.5 See Lobberecht v. Chendrasekhar, 744 N.W.2d

104, 108 (Iowa 2008) (holding plaintiff’s medical malpractice cause of action had

accrued and became property of the bankruptcy estate).6 In this case, Wanek’s

estate did not raise a question concerning McCleary’s status as the real party in

interest in the district court or in the appellate briefing.7 Accordingly, we find any

objection to McCleary as the real party in interest has been waived. See Frontier


5
  The concept of real party in interest is distinct from standing to sue. See Pillsbury Co.,
Inc. v. Wells Dairy, Inc., 752 N.W.2d 430, 434–35 (Iowa 2008). Standing requires the
plaintiff to show an actual demonstrable injury. Id. To be the real party in interest, a
plaintiff must be the “true owner of the right sought to be enforced.” Id.
6
  We note that the automatic stay provision under 11 U.S.C. section 362(a)(3) bars “any
act to obtain possession of property of the [bankruptcy] estate, or of property from the
[bankruptcy] estate or to exercise control over property of the [bankruptcy] estate.”
7
   In fact, when asked about the role of the bankruptcy trustee at oral argument,
appellee’s counsel did not assert the bankruptcy trustee would be the real party in
interest.
                                          6



Leasing Corp. v. Waterford Golf Assocs., L.L.C., No. 10-0019, 2010 WL

4484390, at *10 (Iowa Ct. App. Nov. 10, 2010) (finding defendant waived “real

party in interest” issue); see also Gagle v. Besser, 144 N.W. 3, 4 (Iowa 1913).

IV.    Expert Designation under Iowa Code section 668.11

       The district court decided that McCleary was a party as provided in section

668.2(1) and that section 668.11 requiring disclosure of expert witnesses applied

to his legal malpractice claim filed in the estate of his bankruptcy attorney.

       Iowa Code section 668.11 reads, in pertinent part:

       1. A party in a professional liability case brought against a licensed
       professional pursuant to this chapter who intends to call an expert
       witness of their own selection, shall certify to the court and all other
       parties the expert’s name, qualifications and the purpose for calling
       the expert within the following time period:
               a. The plaintiff within one hundred eighty days of the
       defendant’s answer unless the court for good cause not ex parte
       extends the time of disclosure.
               b. The defendant within ninety days of plaintiff’s certification.
       2. If a party fails to disclose an expert pursuant to subsection 1 or
       does not make the expert available for discovery, 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.

       On appeal, McCleary advances three arguments against the district

court’s decision concerning section 668.11. First, he argues the code section

does not apply to these proceedings because he is not suing a licensed

professional; instead he is suing an estate. Second, he argues he was not given

a reasonable opportunity to designate experts because the designation deadline

expired before a trial date was set. Third, he argues good cause existed to

extend the deadline. We will address each claim in turn.
                                        7



      A. Claim Filed in Probate

      McCleary contends section 668.11 does not apply because he brought

suit against Wanek’s estate in probate and not against a “licensed professional.”

He reasons that Wanek’s license “was no longer in effect once he died.”

McCleary cites section 633.444 which governs matters filed in probate court.

      The code section reads:

      Within twenty days from the filing of the request for hearing on a
      claim, the personal representative shall move or plead to said claim
      in the same manner as though the claim were a petition filed in an
      ordinary action, and thereafter, all provisions of law and rules of
      civil procedure applicable to motions, pleadings and the trial of
      ordinary actions shall apply.

Iowa Code § 633.444. McCleary argues because section 668.11 applies to suits

against licensed professionals, it is not an “ordinary action” as referenced in

section 633.444.   To support this argument, he notes that section 668.11 is

included in Title XV Subtitle 5 of the Iowa Code, which is entitled “Special

Actions.” Without providing authority, he argues special actions are not ordinary.

      We disagree with McCleary’s position. Our early case law defines an

“ordinary action” as “a civil action at law as distinguished from an equitable

proceeding.” State v. McGlothlen, 9 N.W. 893, 893 (Iowa 1881). Iowa Code

section 611.2 discusses civil and special actions.     Civil actions come in two

forms: ordinary and equitable. Iowa Code § 611.3. Code provisions “concerning

the prosecution of a civil action apply to both ordinary and equitable proceedings

unless the contrary appears, and shall be followed in special actions not

otherwise regulated, so far as applicable.” Id. § 611.13. Special actions depend

on the statutes that authorize their pursuit. See Iowa W. Racing Ass’n v. Iowa
                                          8



Racing & Gaming Comm’n., 578 N.W.2d 663, 665 (Iowa 1998). Section 668.11

applies to liability cases against licensed professionals, which are ordinary

actions in tort. See Berry v. Liberty Holdings, Inc., 803 N.W.2d 106, 112 (Iowa

2011) (explaining that chapter 668, Iowa’s Comparative Fault Act, did not did not

create any new causes of action, but rather promulgated a set of rules under

which the parties will try all tort actions involving fault). McCleary’s claim of legal

malpractice filed in the probate proceedings was to be treated in the same

manner as an ordinary action under section 633.444.                 Accordingly, the

requirements of designating experts under section 668.11 applied. See generally

Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa Ct. App. 1995) (discussing purpose of

expert designation requirement).

       B. Reasonable Time to Designate Experts

       Section 668.11 directs the plaintiff to disclose the names of expert

witnesses within 180 days of the defendant’s answer. McCleary argues because

the trial scheduling order in this case did not provide a specific date for

designating experts that the default deadline of 210 days applied. He further

asserts that deadline expired before the scheduling order was entered.

       Wanek’s estate first counters that the scheduling order referenced section

668.11 so the 180-day deadline applied, and second contends the setting of a

trial date was immaterial to compliance with the statute. We agree with Wanek’s

estate.   Under the statute, McCleary was required to designate any expert

witnesses within 180 days of the estate’s answer unless good cause was granted

by the court.
                                        9



       C. Good Cause

       The purpose of section 668.11 is to establish deadlines in professional

liability actions to prevent last minute dismissals. Cox v. Jones, 470 N.W.2d 23,

25-26 (Iowa 1991). The statute was also designed to “require a plaintiff to have

his or her proof prepared at an early stage in the litigation in order that the

professional does not have to spend time, effort and expense in defending a

frivolous action.”   Hantsbarger, 501 N.W.2d at 504.      In determining if good

cause8 for an extension exists, we consider three factors: (1) the seriousness of

the deviation; (2) the prejudice to the estate; and (3) actions of the estate’s

counsel. See id. at 505–06.

       In Donovan v. State, the supreme court affirmed the district court’s denial

of an extension to designate experts because it was filed several months after

the deadline and counsel failed to answer interrogatories seeking statutorily

required information about the expert. 445 N.W.2d 763, 765-66 (Iowa 1989). In

Hantsbarger, the supreme court found good cause when the plaintiffs “complied

with discovery, had their experts in hand, and named them before the statutory

deadline.”   501 N.W.2d at 505.       And the complete designation was only

delinquent by about one week. Id.

       Our case is more analogous to Donovan than Hantsbarger. One hundred

and eighty days from the Wanek estate’s answer was September 25, 2013.

McCleary responded to interrogatories on April 1, 2014, stating information about

his expert was “unknown at this time.” Wanek’s estate sought information about


8
 Because we find section 668.11 applies, we do not address McCleary’s arguments on
good cause outside of the statute.
                                          10



the expert in the interrogatories and filed a motion to compel after McCleary

provided incomplete responses to the interrogatories. McCleary did not file his

designation of expert witnesses until July 31, 2014. Wanek’s estate also alleged

prejudice from the delay because it would have had inadequate time to prepare

in light of McCleary’s late filing of his designation of experts.

       Given the substantial delay in designating experts even after the request

for information from Wanek’s estate, we find no abuse of discretion in the district

court’s decision to strike McCleary’s designation of witnesses as untimely.

V.     Summary Judgment

       McCleary argues even if the district court did not abuse its discretion in

excluding the late-designated expert witnesses, the grant of summary judgment

was still inappropriate. He contends he could establish a prima facie case of

legal malpractice even without expert testimony.

       A legal malpractice lawsuit requires proof of the following elements:

       (1) the existence of an attorney-client relationship giving rise to a
       duty, (2) the attorney, either by an act or failure to act, violated or
       breached that duty, (3) the attorney’s breach of duty proximately
       caused injury to the client, and (4) the client sustained actual injury,
       loss, or damage.

Ruden v. Jenk, 543 N.W.2d 605, 610 (Iowa 1996).

       Wanek’s estate does not dispute that Wanek and McCleary had an

attorney-client relationship.   But it contests the remaining elements.           Expert

testimony regarding the standard of care is usually required in a legal malpractice

action. Crookham v. Riley, 584 N.W.2d 258, 266 (Iowa 1998); but see Kubik,

540 N.W.2d at 64 (“[E]xpert testimony that an attorney’s conduct is negligent is
                                         11



necessary unless proof is so clear a trial court can rule as a matter of law that the

professional failed to meet an applicable standard or the conduct claimed to be

negligent is so clear it can be recognized or inferred by a person who is not an

attorney.”).

       McCleary argues he could have created a question for the jury on the

breach-of-duty elements without an expert because Wanek’s advice was “simply

wrong.” On the tax refund claim, he asserts Wanek misinformed him that he

could carry forward his refund if he filed his tax returns before the bankruptcy

petition. But McCleary also acknowledges he did not follow Wanek’s advice.

Instead, he filed his tax return after he filed the petition. As Wanek’s estate

argues, McCleary cannot show he suffered a loss caused by Wanek’s advice

because he did not follow it.

       McCleary also argues no expert testimony was necessary to establish that

Wanek’s failure to object to the trustee’s sale of the Reliastar claim fell below the

professional standard of care and caused McCleary to suffer damages in a given

amount. We agree with the district court’s conclusion that the complexity of this

matter called for expert testimony. See Kubik, 540 N.W.2d at 64 (concluding

issues raised by plaintiff were “beyond the common knowledge of laypersons and

require[d] expert evidence”). Without expert testimony, McCleary cannot show

Wanek breached a duty by not objecting or that harm resulted.

       Finally, McCleary contends that because he is a licensed attorney himself

he could have served as his own expert witness without designation. He cites

Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 485 (Iowa 2004), where a
                                        12



treating physician was allowed to testify as to causation because his opinion was

not developed in anticipation of litigation, but was not allowed to express opinions

on the standard of care.

       Like the district court, we do not believe that Hansen helps McCleary. As

the bankruptcy debtor, McCleary’s role was more akin to the patient in Hansen

than the treating physician. Even though he is a lawyer, McCleary could not

testify to the standard of care owed by his bankruptcy attorney or give an opinion

that the bankruptcy attorney’s breach of duty caused damages, because

McCleary was not designated as an “expert.”

       The district court was correct in finding no genuine issues of material fact

supporting McCleary’s claim of legal malpractice.       Without expert testimony,

McCleary could not support his claims of negligence against Wanek. We affirm

the district court’s grant of summary judgment in favor of Wanek’s estate.

       AFFIRMED.
