                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2037
                            Filed November 6, 2019


ROBERT RAW,
    Plaintiff-Appellant,

vs.

CHRISTINA SPOFFORD,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Christopher L.

Bruns, Judge.



      A plaintiff appeals the district court’s grant of summary judgment in favor of

a defendant. AFFIRMED.




      Vernon P. Squires and Melissa A. Carrington (until withdrawal) of Bradley

& Riley PC, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and George A. Carroll, Assistant

Attorney General, for appellee.




      Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
                                         2


MULLINS, Judge.

       Dr. Robert Raw appeals the district court’s grant of summary judgment on

statute-of-limitation grounds in favor of Dr. Christina Spofford on his claims of

defamation. Raw generally argues the court erred in concluding he was on inquiry

notice of his claims in 2014, thus barring his 2017 petition as outside the two-year

statute of limitations contained in Iowa Code section 614.1(2) (2017).

I.     Background Facts and Proceedings

       Raw began working at the University of Iowa (University) in 2004. Since

then, he has worked as an anesthesiologist, clinical associate professor, and

professor. Spofford began working as a trainee in the anesthesia department of

the University’s college of medicine in 2003. She became a member of the faculty

in 2008. This litigation concerns allegations of potential sexual harassment against

Raw and reported by Spofford in her role as a supervisory employee.             The

University’s sexual harassment policy requires supervisory employees, such as

Spofford, to inform the office of equal opportunity and diversity (EOD) or the office

of the sexual misconduct response coordinator of any report of possible sexual

harassment made to them by a subordinate.

       In the spring of 2010, a trainee under Spofford’s supervision, M.K., visited

with Spofford about interactions she shared with Raw.             Based on these

discussions, Spofford believed University policy required her to report what M.K.

described, considering the alleged interactions as potential sexual harassment on
                                             3


the part of Raw.1 Spofford approached Dr. Timothy Brennan and sought advice

relative to the information she received from M.K. Brennan advised Spofford she,

as M.K.’s supervisor and per University policy, had to report the information.

Spofford also visited with Dr. Lois Geist. In her role as associate dean of faculty

affairs and development, Geist is responsible for oversight of policies and

procedures. In Geist’s opinion, “the interaction as described involved possible

sexual harassment.” Per university policy, Geist directed Spofford to provide a

written statement of what was described to her.2 Spofford also approached her

immediate supervisor, Dr. Michael Todd, about her conversation with M.K. Todd

also requested a written statement from Spofford.3 Todd also contacted Geist for

advice, who advised he needed to report the matter to the EOD. Todd did so, and

he filed an official complaint with the EOD on June 11.

       The EOD launched an investigation.             Raw denied the allegations.         In

October, the EOD concluded there was no reasonable basis to believe Raw

violated the University’s sexual harassment policy. The EOD’s written findings,



1
   M.K. did not desire to pursue a formal complaint against Raw. The University’s sexual
harassment policy requires supervisors to report allegations of sexual harassment, “even
if the alleged victim does not wish any action to be taken.”
2
   In her written statement to Geist, Spofford recounted what M.K. allegedly told her. The
allegations included Raw placing his hand on M.K.’s upper thigh during a closed-door
exchange in his office, Raw asking M.K. if she was homosexual, Raw telling M.K. she
would feel better if she had sex more often, and Raw touching other staff and commenting
on their physique in a sexual tone. Spofford also noted other specific individuals were
aware of several incidents of inappropriate behavior on Raw’s part.
3
   Spofford also provided a written statement to Todd; Todd made edits to the document
and forwarded it to EOD personnel. Generally, this statement contained the same
allegations but added allegations that Raw showed another female doctor his underwear.
         M.K., after reviewing Spofford’s letter, advised Todd it contained “many significant
areas of inaccuracy” and was “highly subjective in regards to” Spofford’s “point of view
and personalized interpretation of events and conversations which, in some instances,
never occurred.” Todd indicated in his deposition that his role was not to investigate the
accuracy of the information but instead report it to the EOD for investigation.
                                         4


which were provided to Raw, did not identify his accusers. The findings did identify

the individuals who were interviewed during the investigation, which included

Spofford but not M.K. The record indicates that in January 2011, Raw requested

the EOD to provide him with identifying information for the reporting parties and

alleged victims of sexual harassment. The EOD declined, noting policy does not

require such information to be disclosed. The record indicates Raw continued to

attempt to identify his accusers in the ensuing years.

       In August 2014, Raw submitted an “addendum” to be placed in his file to be

associated with the EOD complaint and findings. In this document, Raw generally

discussed his displeasure with the investigation and the University’s failure to

punish those who falsely accused him of sexual harassment. Raw indicated in his

addendum that he suspected M.K. to be his accuser, which was “indirectly

confirmed” by a “serendipitous comment” in the EOD findings. He also stated that,

despite the reporting parties not being disclosed in the findings, identities of the

reporting parties “were however easy for [him] to subsequently determine.” He

specifically identified Spofford and two other doctors as his “third party false

accusers,” noting their identities became apparent to him after reading the final

EOD report and stating he “was easily able to associate some specific lies with Dr.

Spofford whose name was mentioned in the report as a person interviewed” and

he could “state with certainty which lies were statements of . . . Spofford.” He also

discussed the harm he has experienced as a result of the allegations, noting he

has spent significant time and resources trying to clear his name, lost nearly two

years of his professional life, and has changed permanently in many ways. He
                                             5


also indicated an intention to pursue legal action, noting: “The civil court is the

venue for false allegations to be processed and justice to be found.”

       Historically, Raw received three-year appointments to his positions. In

2015, the University gave Raw a final one-year appointment in his positions. Raw

pursued a grievance. In July 2015, during the grievance process, Raw was made

aware of the letter Spofford wrote to Geist in 2010. According to his affidavit in this

litigation, but contrary to his 2014 addendum, Raw stated “this was the first time

[Raw] knew that [] Spofford made allegations against [him] involving harassment.”4

Raw was unsuccessful in his grievance; he resigned from his employment with the

University in December 2016.

       In May 2017, Raw filed a petition at law forwarding claims of libel per se and

libel per quod against Spofford. Roughly a year later, Raw amended his petition

to add claims of slander per se and slander per quod. In September 2018, Spofford

moved for summary judgment. In her memorandum in support of her motion,

Spofford asserted summary judgment was appropriate on three theories—

(1) sovereign immunity, (2) the statute of limitations, and (3) qualified privilege. As

to the statute of limitations, Spofford argued Raw was on inquiry notice of his

claims in 2010 and his petition was therefore barred by the two-year statute of

limitations. Raw resisted. As to the statute of limitations, Raw argued his claims

did not accrue until 2015, when he was made privy to the statements actually made

about him. In her reply, Spofford maintained the claims accrued in 2010, or




4
 Raw also stated in his affidavit that he learned through discovery in this litigation of the
written statement that made its way to the EOD through Todd and oral statements Spofford
made about him.
                                          6


alternatively in 2014, when Raw specifically named Spofford as one of his false

accusers. Raw disagreed in his counter reply.

       Ultimately, the court granted summary judgment in favor of Spofford.

Following a majority of jurisdictions, the district court concluded the discovery rule

applied to Raw’s claims under the circumstances of this case and found “Raw was

on notice of a defamatory injury to his reputation resulting from a statement or

statements made about him by Dr. Spofford” by August 4, 2014, given the fact that,

at that point in time, Raw was aware of “specific lies” made by Spofford. The court

granted summary judgment in favor of Spofford on statute-of-limitations grounds

and declined to address Spofford’s other claimed bases for summary judgment.

As noted, Raw appeals.

II.    Standard of Review

       Appellate review of summary judgment rulings is for correction of errors at

law. Albaugh v. Reserve, 930 N.W.2d 676, 682 (Iowa 2019). “A motion for

summary judgment is appropriately granted when ‘there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.’” Behm v. City of Cedar Rapids, 922 N.W.2d 524, 542 (Iowa 2019) (ellipsis in

original) (quoting Iowa R. Civ. P. 1.981(3)). “An issue is ‘genuine’ if the evidence

in the record ‘is such that a reasonable jury could return a verdict for the nonmoving

party.’” Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 230 (Iowa 2018)

(quoting Nelson v. Lindaman, 867 N.W.2d 1, 6 (Iowa 2015)). The record is viewed

in the light most favorable to the nonmoving party, and that party is granted all

reasonable inferences that can be drawn from the record. Id. “Summary judgment

is appropriate if the only conflict concerns the legal consequences of undisputed
                                             7

facts.” Id. (quoting Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 398

(Iowa 2017)).

III.   Analysis

       As an initial matter, the district court concluded the discovery rule applies to

defamation claims for statute-of-limitations purposes. The Iowa Supreme Court

has “not decided whether the discovery rule applies to . . . nonnegligence claims

such as defamation.” Linn v. Montgomery, 903 N.W.2d 337, 343 (Iowa 2017).5

While we are not bound by concessions or agreements of the parties, see

generally Noble v. Iowa Dist. Ct., 919 N.W.2d 625, 629–30 (Iowa Ct. App. 2018),

because the parties agree the discovery rule applies to such claims, we will

assume it does for purposes of this matter.

       Raw makes various arguments on appeal. They can all be boiled down to

a challenge to the district court’s application of the discovery rule in this matter.

First, Raw appears to argue the court improperly considered Spofford’s argument

that he was on inquiry notice of his claims in 2014 because the argument was

raised for the first time in her reply to Raw’s resistance to her motion for summary

judgment. Spofford, in her memorandum of law in support of her motion for

summary judgment, argued Raw knew of the alleged defamation in 2010 and his

2017 petition was therefore barred by the two-year statute of limitations. In his

resistance materials, Raw argued he did not discover the defamatory statements




5
 This court has relied on Kiner v. Reliance Insurance Company, 463 N.W.2d 9, 13 (Iowa
1990), to conclude the discovery rule does not apply to claims of a defamatory nature.
See Davenport v. City of Corning, No. 06-1156, 2007 WL 3085797, at *6 (Iowa Ct. App.
Oct. 24, 2007). In Linn, the supreme court clarified the plaintiff in Kiner did not argue for
application of the discovery rule. 903 N.W.2d at 343 n.2.
                                             8


until 2015, so his petition was well within the limitations period. In her reply to

Raw’s resistance, Spofford reasserted her belief that the claims accrued in 2010,

but alternatively argued they accrued in 2014, when Raw specifically named

Spofford as one of his false accusers.            We conclude Spofford’s alternative

assertion in her summary judgment reply brief to be a permissible response to

Raw’s resisting argument. Cf. State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009)

(concluding appellant can properly respond in a reply brief to issues raised in the

appellee’s brief).6 In any event, both parties took the position that the discovery

rule was in play, and Raw had a full and fair opportunity to respond to the

argument, and in fact did in his counter reply. Cf. Terpstra, 2018 WL 2246838, at

*2 (reversing grant of motion to dismiss because non-moving party did not have

notice of and chance to respond to affirmative defense raised by the court sua

sponte).7

       Next, Raw argues a genuine issue of material fact exists as to whether Raw

knew or should have known of his claims against Spofford in 2014. He argues that

his 2014 belief that Spofford was his false accuser was mere speculation, and the


6
  Raw relies on our decision in In re Estate of Terpstra, No. 17-0893, 2018 WL 2246838
(Iowa Ct. App. May 16, 2018), to support his argument that Spofford’s failure to raise the
2014 accrual argument in her initial summary judgment materials amounted to a waiver of
the argument. Terpstra is readily distinguishable. In Terpstra, the moving party did not
plead the statute of limitations at all. 2018 WL 2246838, at *1. Instead, the district court
raised the statute of limitations sua sponte and granted the motion to dismiss. Id. This
court reversed because the movant did not provide the non-moving party “with notice of
the actual affirmative defense relied on by the court.” Id. at *2.
7
  Spofford moved to strike Raw’s counter reply as not authorized by the rules of civil
procedure. In a thorough and well-reasoned ruling, the district court denied the motion,
although it did strike portions of the counter reply it found improper. See Iowa R.
Civ. P.1.434. The court explained, “Parties are entitled to respond to the arguments
asserted against them—denial of such opportunity would be prejudicial” and ruled Raw
was “entitled to the opportunity to respond to the new argument not found in the initial
briefing that the statute of limitations began to run on August 4, 2014.”
                                         9


actual harm he suffered underlying his claims did not come to fruition until 2015,

when the grievance of his non-reappointment was rejected. As to his libel-per-se

claim, Raw additionally argues his claim could not have accrued until he saw the

specific accusations Spofford made against him because such a claim requires a

showing that defamatory words carry a presumption of harm. As to his claim of

libel per quod, he argues the claim could not accrue until he suffered actual harm,

which did not occur until the exhaustion of his administrative appeal.

       Claims founded on injuries to reputation, such as defamation, are subject

to a two-year statute of limitations. See Iowa Code § 614.1(2); McCracken v.

Edward D. Jones & Co., 445 N.W.2d 375, 383 (Iowa Ct. App. 1989). Our inquiry

focuses on when the cause of action accrued, not when the underlying conduct

occurred. See Skadburg v. Gately, 911 N.W.2d 786, 792 (Iowa 2018). A statute

of limitations begins to run at the time of accrual of a cause of action. Albrecht v.

Gen. Motors Corp., 648 N.W.2d 87, 90 (Iowa 2002).             Generally, under the

discovery rule, statutes of limitation do “not begin to run until the injured person

has actual or imputed knowledge of all the elements of the cause of action.” Hook

v. Lippolt, 755 N.W.2d 514, 521 (Iowa 2008) (quoting Franzen v. Deere & Co., 377

N.W.2d 660, 662 (Iowa 1985)). We turn to whether there is any genuine issue of

material fact as to whether Raw had actual or imputed knowledge of all of the

elements of his claims.

       “Defamation includes the twin torts of libel and slander. Libel involves

written statements, while slander involves oral statements.” Bierman v. Weier, 826

N.W.2d 436, 444 (Iowa 2013). Iowa “recognize[s] two types of defamation: per

quod and per se.” Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 46
                                         10


(Iowa 2018). Per-quod defamation requires the establishment of “six elements:

(1) publication, (2) a defamatory statement, (3) falsity, (4) maliciousness, (5) the

statement was of or concerning the party, and (6) resulting injury.” Id. Per-se

defamation requires the establishment of the same elements, except for falsity,

malice, and injury, which are legally presumed. Id.

       Raw’s 2014 addendum renders undisputed that by no later than August of

that year, he had actual knowledge of all of the elements of his claims—that

Spofford published a defamatory statement concerning him, which he believed to

be false and malicious and resulted in injury to him. First, Raw verified he was

easily able to identify Spofford as a false accuser after reading the EOD’s written

findings, which he received in 2010; he specifically noted he “was easily able to

associate some specific lies with Dr. Spofford whose name was mentioned in the

report as a person interviewed” and he could “state with certainty which lies were

statements of . . . Spofford.” As to publication, it is undisputed that Spofford

reported the allegations, and Raw believed the same in 2010 after reading the

EOD report. As to whether the statements were defamatory,8 Raw professed in

his 2014 addendum to the resulting injury to his reputation, noting, among other

things, “The stench of pig lingers long on one[’]s flesh when one has been thrown

into a pig pen.”   The evidence is likewise undisputed that Raw believed the

allegations to be both false and malicious. Finally, as to injury, Raw elaborated in

his addendum on the various injuries he suffered as a result of the allegations




8
  See Defamatory Statement, Black’s Law Dictionary (11th ed. 2019) (“A statement that
tends to injure the reputation of a person referred to in it.”).
                                           11


reported by Spofford—damage to reputation, mental and emotional trauma,

financial loss, and effects on his professional and personal lives, to name a few.

       Raw goes on to argue he could not have been on notice of his claims until

he knew the actual words published about him, that is, when he was able to review

the documentation and other evidence concerning the allegations against him in

2015 and thereafter during this litigation. He takes the position that he was unable

to discover the claim because it was concealed by the University and he could not

institute legal action without the benefit of knowing the specific allegations that

were made against him.         Yet, the EOD report apprised Raw of the specific

allegations made against him, in vivid detail. The addendum makes clear that Raw

was able to tie “specific lies” to Spofford after reviewing the EOD report. Raw knew

of his claims; he did not need the materials he claims were necessary to trigger

the statute of limitations in order to initiate legal proceedings. See Iowa R. Civ.

P. 1.403(1) (“A pleading which sets forth a claim for relief . . . shall contain a short

and plain statement of the claim showing that the pleader is entitled to relief . . . .”);

see also McFarland v. City of Muscatine, 67 N.W. 233, 234 (Iowa 1896) (stating a

pleading is sufficient even if it charges beliefs rather than facts). We disagree with

Raw’s assertion that our supreme court’s ruling in Nelson v. Melvin required that

he plead in his “petition the words that were spoken or written.” 19 N.W.2d 685,

689 (Iowa 1945). That case fell under the operation of former rule of procedure 70.

Id. Now all that is required is a simple, short, concise, direct, and plain statement

of a claim for relief. See Iowa Rs. Civ. P. 1.402(2)(a), .403(1). Even if he was

required to plead the exact words used, Raw could have pled the “specific lies” he

attributed to Spofford.
                                            12


       Next, we do not find Raw’s belated assertion in his affidavit in this litigation,

that 2015 “was the first time [Raw] knew that [] Spofford made allegations against

[him] involving harassment,” creates any genuine issues of material fact. Nor are

we persuaded Raw suffered no injuries until after July 2015, when his re-

appointment grievance was rejected. The 2014 addendum preached to the injuries

Raw believed he had suffered as a result of the allegations against him.

       We find the evidence undisputed that Raw had knowledge of all of the

elements of his defamation claims against Spofford no later than 2014. See Hook,

755 N.W.2d at 521. As such, the time of the accrual of the claims is properly a

question of law to be addressed by the court at the summary judgment stage. See

Honomichl, 914 N.W.2d at 230; Shams v. Hassan, 905 N.W.2d 158, 164 n.2 (Iowa

2017) (quoting 54 C.J.S. Limitations of Actions § 437, at 486–87 (2010)). We affirm

the district court’s conclusions that Raw was on notice of his claims against

Spofford no later than 2014, the claims had accrued at that time, and Raw’s 2017

petition was therefore barred by the two-year statute of limitations contained in

Iowa Code section 614.1(2).9

       AFFIRMED.




9
 Given our disposition, we need not address Spofford’s request that we affirm on grounds
raised but not decided below. See, e.g., King v. State, 818 N.W.2d 1, 10 (Iowa 2012)
(noting appellate courts may “uphold a district court ruling on a ground other than the one
upon which the district court relied provided the ground was urged in that court” (quoting
Martinek v. Belmond-Klemme Cmty. Sch. Dist., 772 N.W.2d 758, 762 (Iowa 2009))).
