               IN THE SUPREME COURT OF IOWA
                            No. 128 / 06-0490

                        Filed December 14, 2007

KENNETH W. TURNER,

      Appellant,

vs.

IOWA STATE BANK & TRUST COMPANY OF
FAIRFIELD, IOWA, and EARL WALLACE DICK,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Adair County, Paul R.

Huscher, Judge.



      Plaintiff appeals a district court order sustaining the defendants’

motion to dismiss.   DECISION OF COURT OF APPEALS AFFIRMED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.



      Michelle L. Heller of Nepple Law, PLC, Muscatine, for appellant.



      Myron L. Gookin of Foss, Kuiken, Gookin, Cochran, P.C., Fairfield, for

appellees.
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WIGGINS, Justice.

      In this appeal we must decide whether the district court erred when it

sustained a motion to dismiss. Our court of appeals reversed the district

court’s ruling, and on further review we agree the district court improperly

sustained the motion to dismiss. Accordingly, we affirm the decision of the

court of appeals, reverse the judgment of the district court, and remand the

case for further proceedings consistent with this decision.

      I. Prior Proceedings.

      On October 24, 2005, Kenneth W. Turner brought an action in the

Adair County District Court against co-trustees Iowa State Bank & Trust

Company of Fairfield, Iowa and Earl Wallace Dick.          Turner’s petition

contained one count and alleged various wrongdoings regarding the co-

trustees’ work on his father’s trust, the Gene L. Turner Residuary Trust.

Attached to Turner’s petition were various documents in support of his

claims. These documents included the will of Gene Turner, which created

the trust.   The other documents consisted of correspondence between

attorneys and a pleading from an action between Turner and his mother,

Mary Christine Turner, Gene Turner’s wife.

      The co-trustees responded to Turner’s petition by filing a combined

motion for change of venue and motion to dismiss. The motion to dismiss

alleged Turner’s present action was “barred by adjudication, consent, or

other limitation” based on his failure to raise the claims as of May 6, 2004,

which was the deadline for filing objections to the final report of the trust.

Alternatively, the co-trustees claimed the action was barred because

Turner’s action was filed more than one year after the date he received the

final report and accounting in the trust matter. The co-trustees relied on
                                             3

Iowa Code section 633A.4504 (2005)1 to support their motion to dismiss. In

their motion the co-trustees alleged facts in addition to those contained in

the petition. They also attached documents in support of their motion.

       Turner filed a resistance to the motion, arguing the one-year statute

of limitations in section 633A.4504 did not apply to his claim because his

claims were independent from those raised in the trust matter. He argued

the two-year statute of limitations found in section 614.1(2), which applies

to personal injuries or injuries to the reputation, is applicable to some of his

claims while the five-year statute of limitations for breach-of-written-

contract claims in section 614.1(4) is applicable to others. He also argued

res judicata, issue preclusion, or claim preclusion were not applicable to his

new claims because they were independent from his claims in probate.

       The district court granted the co-trustees’ motion to dismiss. Turner

appealed.     In their reply brief, the co-trustees requested an award of

attorney fees. A divided court of appeals reversed the district court’s ruling

sustaining the motion to dismiss, denied the co-trustees’ claim for attorney

fees, and remanded the case with directions for the district court to address

the co-trustees’ motion for change of venue. The co-trustees petitioned for

further review, which we granted.

       II. Motions to Dismiss Generally.

       A court can grant a motion to dismiss if the plaintiff fails to state a

claim upon which any relief may be granted. Iowa R. Civ. P. 1.421(1)(f). On

appeal we review a district court’s ruling on a motion to dismiss for

correction of errors at law. See Iowa R. App. P. 6.4; see also Mlynarik v.
Bergantzel, 675 N.W.2d 584, 586 (Iowa 2004). A court cannot consider


       1In 2005, the legislature directed the code editor to transfer the Iowa Trust Code to
chapter 633A. 2005 Iowa Acts ch. 38, § 54. Accordingly, all references to the Iowa Trust
Code are to chapter 633A.
                                       4

factual allegations contained in the motion or the documents attached to

the motion. Berger v. Gen. United Group, Inc., 268 N.W.2d 630, 634 (Iowa

1978). The court must ignore these facts, except those of which the court

may take judicial notice. Winneshiek Mut. Ins. Ass’n v. Roach, 257 Iowa

354, 365, 132 N.W.2d 436, 443 (1965). In determining whether to grant the

motion to dismiss, a court views the well-pled facts of the petition in the

light most favorable to the plaintiff, resolving any doubts in the plaintiff’s

favor. Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004). The

purpose of the motion is to test the legal sufficiency of the petition. Berger,

268 N.W.2d at 634.

      We have previously discussed the pitfalls a party encounters when a

person files a motion to dismiss. Cutler v. Klass, Whicher, & Mishne, 473

N.W.2d 178, 181 (Iowa 1991). There we stated:

      We recognize the temptation is strong for a defendant to strike
      a vulnerable petition at the earliest opportunity. Experience
      has however taught us that vast judicial resources could be
      saved with the exercise of more professional patience. Under
      [our rule governing motions to dismiss] dismissals of many of
      the weakest cases must be reversed on appeal. Two appeals
      often result where one would have sufficed had the defense
      moved by way of summary judgment, or even by way of defense
      at trial. From a defendant’s standpoint, moreover, it is far from
      unknown for the flimsiest of cases to gain strength when its
      dismissal is reversed on appeal.

Id. In other words, a court will rarely dismiss a petition for a failure to state

a claim upon which any relief may be granted. Id.; see also Am. Nat’l Bank

v. Sivers, 387 N.W.2d 138, 140 (Iowa 1986) (stating “it is a rare case which

will not survive a [motion to dismiss]”).

      III. Factual Basis of Turner’s Claims.
      Considering the well-pled facts of the petition in the light most

favorable to Turner and disregarding the factual allegations contained in the

motion to dismiss and its attachments, we find the facts as follows.
                                       5

        Gene Turner died on October 2, 2000. He was married to Mary

Christine Turner and had two children, Duane and Kenneth.               Duane

predeceased his father but left two children, Douglas Turner and Stacy

Turner-Richards. In Gene Turner’s will he created a trust for the benefit of

his wife with his sons or their issue named as residuary beneficiaries.

When the court closed the estate, Kenneth and Douglas were named co-

trustees. Kenneth and Douglas had several disagreements so the court

appointed Iowa State Bank and Dick as successor co-trustees in April of

2003.    Sometime thereafter, the family members entered into a family

settlement agreement ending the trust and disbursing the assets. The

terms of the agreement are not included in Turner’s petition.

        On October 12, 2004, the court entered an order enforcing the

settlement agreement. On October 22 the court entered an order closing

the trust and discharging the trustees. At the same time Turner filed this

action, he appealed the order closing the trust and discharging the trustees.

In an unpublished opinion, the court of appeals affirmed the order. In re

Trust of Turner, No. 04-1835, 2006 WL 468611, at *5 (Iowa Ct. App.

March 1, 2006).

        Turner’s petition contains three claims. The first claim is for damages

against the co-trustees for their failure to pay Turner’s legal fees arising

from his successful defense of a criminal trespass charge. Turner was

charged with trespassing on the trust property at a time he and Douglas

were co-trustees. At the criminal trial the court found Turner not guilty.

Turner claims the final report of the trust as filed by the successor co-

trustees should have contained a provision indemnifying him for the legal

fees he incurred in defense of the criminal action.
                                      6

      The second claim against the co-trustees is for their interference with

the family settlement agreement. In this claim Turner alleges the family

members entered into an agreement settling the disputes concerning the

trust. The agreement called for closing the trust and disbursing the assets

of the trust.   Turner claims the co-trustees interfered with the family

settlement agreement by their actions in distributing the trust assets.

      The third claim is for damages arising out of the co-trustees’ breach of

an agreement not to interfere with any lawsuits brought between

beneficiaries of the trust. Turner claims the co-trustees breached this

agreement by conspiring with his mother to file an action to have Turner

declared incompetent.

      IV. Co-trustees’ Motion to Dismiss.

      To support their motion to dismiss, the co-trustees rely solely on the

Iowa Code section that provides:

      Unless previously barred by adjudication, consent, or other
      limitation, a claim against a trustee for breach of trust is
      barred as to a beneficiary who has received a final account or
      other report adequately disclosing the existence of the claim,
      unless a proceeding to assert the claim is commenced within
      one year after the earlier of the receipt of the accounting or
      report of the termination of the trust relationship between the
      trustee and beneficiary.

Iowa Code § 633A.4504(1). The co-trustees make two arguments under this

section. First, they argue the trust proceedings in the probate court barred

Turner’s claims in this action based on the theory of res judicata, issue

preclusion, or claim preclusion. Second, they argue the one-year statute of

limitations contained in section 633A.4504(1) bars Turner’s claims. The co-

trustees make no claim that should the court consider the uncontroverted
allegations as true, Turner’s petition fails to state a claim recognized by

Iowa law.
                                       7

      A. Res Judicata, Issue Preclusion, or Claim Preclusion. To decide

this issue it is necessary for the court to have before it the appropriate court

records from the prior case upon which the co-trustees claim the theory of

res judicata, issue preclusion, or claim preclusion bars the present claims.

In a motion to dismiss based on the plaintiff’s failure to state a claim upon

which any relief may be granted, the court can only consider the well-pled

facts, not the factual allegations contained in the motion or the documents

attached to the motion. Berger, 268 N.W.2d at 634. Turner’s petition

contains none of the necessary allegations or documents to support the co-

trustees’ position that Turner’s claims are barred by the theory of res

judicata, issue preclusion, or claim preclusion. Even if we were to take

judicial notice of the probate action where the court of appeals affirmed the

closing of the trust and the discharging of the trustees, we cannot say with

any certainty the issues raised in the probate action are identical to those

raised in Turner’s petition in the present case. Accordingly, at this stage of

the proceedings we cannot determine if the theory of res judicata, issue

preclusion, or claim preclusion bars Turner’s claims. See Johnson v. Ward,

265 N.W.2d 746, 749 (Iowa 1978) (holding res judicata can be raised by a

motion to dismiss if the nature of the prior adjudication appears on the face

of the petition or arises from taking judicial notice of the petitions in

pending cases, from which it is indisputable that they present identical

causes of action against the defendant); see also Smith v. Smith, 513 N.W.2d

728, 731 (Iowa 1994) (holding a defense of res judicata cannot be raised by

a motion to dismiss); Bickford v. Am. Interinsurance Exch., 224 N.W.2d 450,

454 (Iowa 1974) (same). These defenses are better suited to be raised

through a motion for summary judgment, where the necessary supporting
                                        8

documentation can be submitted for consideration by the court in ruling on

the motion.

         B. Statute of Limitations. A defendant may raise the statute of

limitations by a motion to dismiss if it is obvious from the uncontroverted

facts contained in the petition that the applicable statute of limitations bars

the plaintiff’s claim for relief. State ex rel. Krupke v. Witkowski, 256 N.W.2d

216, 218 (Iowa 1977). The co-trustees argue Turner’s claims are barred by

the one-year limitation period found in section 633A.4504(1).               The

limitations provision of this section bars a beneficiary’s claim against a

trustee for a breach of trust by a beneficiary

         who has received a final account or other report adequately
         disclosing the existence of the claim, unless a proceeding to
         assert the claim is commenced within one year after the earlier
         of the receipt of the accounting or report of the termination of
         the trust relationship between the trustee and beneficiary.

Iowa Code § 633A.4504(1).
         In order to sustain the co-trustees’ motion to dismiss, the
uncontroverted allegations of Turner’s petition must establish: (1) he is a
beneficiary of the trust; (2) the claim against the co-trustees is for a breach
of trust; (3) Turner received a final account or other report adequately
disclosing the existence of the claim; and (4) he failed to commence his
action within one year after the earlier of the receipt of the accounting or
report of the termination of the trust relationship between the trustees and
beneficiary.
         The uncontroverted allegations of Turner’s petition establish the first
element. He is a beneficiary of his father’s residuary trust. However, we
cannot conclude under this record whether the second element is
established—that Turner’s claims against the co-trustees are for a breach of
trust.
                                       9

      A trustee breaches his duty of trust when he violates a duty owed to
the beneficiary. Iowa Code § 633A.4501. The Iowa Trust Code contains
numerous duties a trustee must perform.           These include the duty to
administer the trust in accordance with the terms of the trust and the trust
code, id. § 633A.4201; the duties of loyalty, impartiality, and confidentiality,
id. § 633A.4202; the duty to inform and account, id. § 633A.4213; and the
duty to manage the assets of the trust prudently, id. § 633A.4302. The
Iowa Trust Code contains the remedies a beneficiary may seek for a breach
of trust. Id. §§ 633A.4502–03.
      Turner’s first claim is for the co-trustees’ failure to pay Turner’s legal
fees arising from his successful defense of the criminal trespass charge.
Although Turner is a beneficiary of the trust, viewing the allegations of the
petition in the light most favorable to him, Turner is alleging he is entitled
to reimbursement for these fees as a creditor of the trust. Therefore, we
cannot say the uncontroverted facts of the petition establish this claim as
one for breach of trust.
      Turner’s second and third claims involve the co-trustees’ interference
with the family settlement agreement and a lawsuit between him and his
mother. The co-trustees’ motion to dismiss did not challenge whether such
actions are maintainable under Iowa law, rather they argue these actions
are nothing more than breach-of-trust claims that are barred by the statute
of limitations contained in section 633A.4504.
      In these claims, Turner alleges the co-trustees did not breach a duty
owed to him as a beneficiary, but that the co-trustees tortiously interfered
with the family settlement agreement and the lawsuit with his mother. If we
assume for the purposes of this opinion Turner’s claims of tortious
interference are actionable under Iowa law, these are not breach-of-trust
claims. Rather these are independent claims outside the purview of the
trust code. See Huffey v. Lea, 491 N.W.2d 518, 520 (1992) (reaffirming that
                                     10

Iowa recognizes an independent action outside the probate code for tortious
interference with a bequest). Therefore, these claims may not be subject to
the one-year limitation contained in section 633A.4504(1). See Frohwein v.
Haesemeyer, 264 N.W.2d 792, 793–95 (1978) (holding the tort of intentional
interference with a bequest is an independent claim and not subject to the
limitations period of the probate code).
      V. Attorney Fees.
      The co-trustees argue Turner should be required to reimburse them
for their attorney fees because Turner’s actions are baseless. Our rules of
civil procedure contain a provision for sanctions, including the reasonable
expenses and attorney fees incurred by a party, when another party files a
frivolous pleading. Iowa R. Civ. P. 1.413(1). The rule allows a court to
impose sanctions upon its own initiative or upon the motion of a party. Id.
The court did not consider the imposition of sanctions on its own initiative.
The co-trustees did not move for sanctions in the district court. Therefore,
we will not consider the imposition of sanctions for the first time on appeal.
Fennelly v. A-1 Mach. & Tool Co., 728 N.W.2d 181, 187–88 (Iowa 2007).
      VI. Motion for Change of Venue.
      The district court was not required to rule on the co-trustees’ motion
for change of venue because it sustained the motion to dismiss. On remand
the court should consider the motion for change of venue before proceeding
further with the case.
      VII. Disposition.
      The order of the district court sustaining the co-trustees’ motion to
dismiss is reversed, and this matter is remanded for further proceedings
consistent with this opinion.
      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
