              IN THE SUPREME COURT OF IOWA
                              No. 16–1136

                         Filed October 27, 2017


LINDA LINN and MARK SHUCK,

      Appellants,

vs.


PAT MONTGOMERY, CHRISTY SCHRADER, and BRAD ALLEN,

      Appellees.


      Appeal from the Iowa District Court for Scott County, J. Hobart

Darbyshire (ruling on defendant Montgomery’s motion for summary

judgment), Marlita A. Greve (ruling on defendant Schrader’s motion for

summary judgment), Thomas G. Reidel (trial), Judges.



      Plaintiff appeals the district court order granting defendants’

motions for summary judgment. AFFIRMED.



      Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for
appellants.



      Elliott R. McDonald III and Ryan F. Gerdes of McDonald,

Woodward & Carlson, P.C., Davenport, for appellee Pat Montgomery.

      Clark I. Mitchell and Aaron W. Lindebak of Grefe & Sidney, P.L.C.,

Des Moines, for appellee Christy Schrader.

      Paula L. Roby and Nicholas J. Kilburg of Elderkin & Pirnie, P.L.C.,

Cedar Rapids, for appellee Brad Allen.
                                    2

WIGGINS, Justice.

      In this appeal, a plaintiff asks our court to decide if the district

court properly granted summary judgment and partial summary

judgment on his defamation claim based on the running of the statute of

limitations.   Additionally, we must determine if the court properly

granted summary judgment on the plaintiff’s malicious prosecution claim

on the ground the defendants merely furnished information to law

enforcement and thus, did not instigate his criminal prosecution. Due to

an answer to a special interrogatory by the jury, we do not reach the

statute of limitations arguments made on the defamation claim. On the

malicious prosecution claim, we affirm the decision of the district court.

Accordingly, we affirm the judgment of the district court.

      I. Relevant Facts.

      Linda Linn and Mark Shuck are spouses who resided in a

condominium complex called Partridge Villa Building X (Building X) in

Bettendorf, Scott County, Iowa. From 2004 to 2008, Shuck served as the

president of the homeowners’ association of Building X.           Patrick

Montgomery and Christy Schrader also resided in Building X. In 2012,

Montgomery and Schrader reviewed financial records of Building X and

prepared a written report of alleged wrongdoings by Linn and Shuck

while he was president.

      On two occasions in January 2012, Montgomery spoke to an

assistant county attorney with the Scott County attorney’s office. In the

initial meeting, after discussing the wrongdoings Linn and Shuck had

allegedly perpetrated, Montgomery learned from the assistant county

attorney that the statute of limitations barred all of the allegations.

Montgomery then investigated further and, presumably for the first time,

came across an alleged unauthorized water line scheme. This scheme
                                          3

concerned alleged unauthorized payments from the funds of the

homeowners’ association toward a water meter with a water line that

serviced an outdoor spigot attached to the wall of Linn and Shuck’s unit.

       On      December     17,   2012,       Montgomery     delivered     a   binder

summarizing the alleged wrongdoings by Linn and Shuck, including the

water line scheme, to Officer Dennis Tripp with the Bettendorf Police

Department.       On March 4, 2013, Detective Brad Levetzow with the

Bettendorf Police Department met with Montgomery to discuss the

matters addressed in the binder.              On March 12, Detective Levetzow

interviewed Schrader about the alleged unauthorized charges and

Shuck’s alleged involvement. Two days later, Detective Levetzow initiated

criminal charges by filing a criminal complaint and affidavit.                    The

criminal complaint and affidavit alleged Shuck had committed theft by

misappropriating homeowners’ association funds to pay water bills from

June 24, 1997, to March 16, 2010.

       On April 31, 2013, an assistant county attorney filed a trial

information formally charging Shuck with second-degree theft.                      On

July 3, the court dismissed the information against Shuck because the

theft charge fell outside the applicable statute of limitations.

       II. Procedural History.

       On March 10, 2015, Linn and Shuck filed a petition in Scott

County District Court, claiming defamation and malicious prosecution.

Linn also alleged a loss of consortium claim. 1 Montgomery and Schrader

filed separate motions for summary judgment.




       1Linn and Shuck filed additional claims as well as claims against another
defendant. They did not appeal these claims, and we will not discuss the claims in this
opinion.
                                      4

      Specifically, Montgomery and Schrader argued they were entitled

to summary judgment on the defamation claim as a whole and partial

summary judgment on Shuck’s defamation claim, respectively, because

statements uttered before March 10, 2013, fell outside the two-year

statute of limitations. 2   Schrader further argued she was entitled to

summary judgment with respect to Linn’s defamation claim because the

summary judgment record lacked any indication that Schrader had

defamed Linn.        Unlike Schrader, Montgomery also sought summary

judgment on Linn’s loss of consortium claim.           As for the malicious

prosecution claim, Montgomery and Schrader asserted the ultimate

decision whether to proceed with a criminal action rested with the county

attorney’s office.    Thus, they argued, the malicious prosecution claim

must fail.

      In resisting the motions for summary judgment, Linn and Shuck

contended the discovery rule should apply to defamatory statements that

are secretive or inherently undiscoverable, such as statements made to

law enforcement, which are not public until the filing of the criminal

complaint and minutes of testimony.          Linn and Shuck alternatively

argued the original defamer is liable for damages resulting from

reasonably foreseeable republication or repetition of the statements.

      With respect to their malicious prosecution claim, Linn and Shuck

argued Montgomery and Schrader knowingly made false assertions of

wrongdoing because they knew about the alleged water line scheme but

did not raise the issue in Montgomery’s first meeting with the assistant



        2The summary judgment record shows Montgomery did not make defamatory

statements on or subsequent to March 10, 2013. On the other hand, Schrader
allegedly made defamatory statements on March 12. Thus, the March 12 statements
fall within the two-year statute of limitations.
                                     5

county attorney. Thus, according to Linn and Shuck, Montgomery and

Schrader did not believe the water line constituted criminal wrongdoing.

      The court granted summary judgment in favor of Montgomery on

Linn and Shuck’s defamation and malicious prosecution claims but

denied summary judgment as to Linn’s loss of consortium claim. As to

Schrader, the court granted partial summary judgment on Shuck’s

defamation claim as to any statements made before March 10, 2013,

summary judgment on Linn’s defamation claim, and summary judgment

on Linn and Shuck’s malicious prosecution claim.

      Shuck’s defamation claim against Schrader for statements made

on or after March 10, 2013, and Linn’s claim for her loss of consortium

with her husband Shuck, based on the defamatory remarks made by

Montgomery and Schrader, proceeded to a jury trial. In regards to Linn’s

loss of consortium claim, the court allowed the jury to consider all of the

alleged defamatory remarks made by Montgomery and Schrader,

including those made before March 10, 2013.

      The jury returned a verdict in favor of Montgomery and Schrader.

Shuck and Linn filed a notice of appeal. However, only Shuck raises any

issues in this appeal. Therefore, we will not consider any claims of Linn.

We will lay out additional facts as needed.

      III. Issues.

      Shuck raises two issues on appeal.       First, whether the district

court erred in granting Montgomery summary judgment and Schrader

partial summary judgment on the ground the statute of limitations

barred Shuck’s defamation claim for statements they made before

March 10, 2013.      Second, whether the district court erred in granting

summary judgment on Shuck’s malicious prosecution claim.
                                    6

      IV. Scope of Review.

      We review summary judgment motions for corrections of errors at

law. Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 434 (Iowa 2008).

Summary judgment is proper only when the entire record demonstrates

the absence of a genuine issue 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). Our review

is accordingly “limited to whether a genuine issue of material fact exists

and whether the district court correctly applied the law.”      Pillsbury,

752 N.W.2d at 434.

      A fact is material when its determination might affect the outcome

of a suit. Walker v. State, 801 N.W.2d 548, 554 (Iowa 2011). A genuine

issue of material fact exists when reasonable minds can differ as to how

a factual question should be resolved. Id. Montgomery and Schrader, as

the respective moving parties, bear the burden of showing the absence of

material facts. C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 73

(Iowa 2011). Shuck, as the nonmoving party, “cannot rely on the mere

assertions in his pleadings but must come forward with evidence to

demonstrate that a genuine issue of fact is presented.”          Stevens,

728 N.W.2d at 827.

      In reviewing the court’s summary judgment ruling, we view the

record in the light most favorable to the nonmoving party. Boelman v.

Grinnell Mut. Reins. Co., 826 N.W.2d 494, 501 (Iowa 2013). We draw all

legitimate inferences the evidence bears that will establish a genuine

issue of material fact. Wolfe, 795 N.W.2d at 73. However, if there is no

genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law, the district court should grant a party’s
                                            7

motion for summary judgment.                Nationwide Mut. Ins. v. Kelly, 687

N.W.2d 272, 274 (Iowa 2004).

      V. Whether the District Court Erred in Granting Schrader
Partial Summary Judgment and Montgomery Summary Judgment
on the Ground the Statute of Limitations Barred Shuck’s
Defamation Claim for Statements Made Before March 10, 2013.

       First, Shuck contends the two-year statute of limitations contained

in Iowa Code section 614.1(2) pertaining to defamation is subject to the

discovery rule. Section 614.1(2) provides,

             Actions may be brought within the times herein
       limited, respectively, after their causes accrue, and not
       afterwards, except when otherwise specially declared:

               ....

             . . . Those founded on injuries to the person or
       reputation, including injuries to relative rights, whether
       based on contract or tort, . . . within two years.

Iowa Code § 614.1(2) (2015).

       We have adopted the discovery rule for negligence claims leading to

injuries to one’s interest under this section in Chrischilles v. Griswold,

260 Iowa 453, 463, 150 N.W.2d 94, 100–01 (1967). We have not decided

whether the discovery rule applies to this statute for nonnegligence

claims such as defamation. 3 Second, Shuck argues each republication of

a defamatory statement begins the running of the statute of limitations

anew. However, based on the jury’s answer to a special interrogatory, we

will not reach the statute of limitations issues.

       In order to prove a loss of consortium claim, the spouse must

prove the defendant committed a tort against the other spouse.                        See

Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 149

       3The   district court relied on Kiner v. Reliance Ins., 463 N.W.2d 9 (Iowa 1990), to
support its conclusion the discovery rule does not apply. However, in Kiner, the
plaintiff did not argue the discovery rule. Id. at 13–14.
                                    8

(Iowa 1983). Thus, in order for Linn to recover on her loss of consortium

claim, she must prove Montgomery or Schrader defamed Shuck.            The

court instructed the jury on the underlying defamation claim as follows:

                          INSTRUCTION NO. 10

            In deciding whether the plaintiff Mark Shuck has
      proven his defamation claim, you are only to consider alleged
      actions or statements by the defendants that occurred after
      March 10, 2013. In regards to the claim that Linda Linn
      suffered a loss of consortium, you may consider all alleged
      actions or statements by the defendant[s] that may have
      defamed Mark Shuck.

      In its answers to a special interrogatory regarding Linn’s loss of

consortium claim, the jury found neither Montgomery nor Schrader

defamed Shuck before March 10, 2013.           This finding by the jury

established factually that neither Montgomery nor Schrader defamed

Shuck prior to March 10. Therefore, even if the district court had ruled

in favor of Shuck on the statute of limitations issues in its ruling on the

motions for summary judgment, the jury would have found no

defamation occurred prior to March 10, and the court would have

entered judgment against Shuck on his precluded defamation claim.

      Generally, “the doctrine of issue preclusion prevents parties to a

prior action in which judgment has been entered from relitigating in a

subsequent action issues raised and resolved in the previous action.”

Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981) (footnote

omitted). We do not require mutuality of parties to apply the doctrine of

issue preclusion. Id. at 123, 125. The purpose of issue preclusion is to

“prevent needless relitigation and therefore promote judicial economy.”

Id. at 124. The four prerequisites required to apply issue preclusion are

      (1) the issue concluded must be identical; (2) the issue must
      have been raised and litigated in the prior action; (3) the
                                     9
      issue must have been material and relevant to the
      disposition of the prior action; and (4) the determination
      made of the issue in the prior action must have been
      necessary and essential to the resulting judgment.

Id. at 123. The issue then becomes were these prerequisites established

by the verdict in Linn’s loss of consortium claim.

      A. The Issue Concluded Must Be Identical. If the court allowed

Shuck to proceed on his defamation claim, he would have to prove the

statements made by Montgomery or Schrader before March 10, 2013,

were defamatory as to him.         For Linn to succeed on her loss of
consortium claim she would have to prove the statements made by

Montgomery or Schrader at any time were defamatory as to Shuck. The

jury determined no statements, including those made before March 10,

by Montgomery or Schrader were defamatory as to Shuck.

      B. The Issue Must Have Been Raised and Litigated in the Prior

Action.    It is clear Linn raised and litigated the issue of whether the

statements made by Montgomery or Schrader before March 10, 2013,

were defamatory as to Shuck in attempting to prove her loss of

consortium claim.

      C.   The Issue Must Have Been Material and Relevant to the

Disposition of the Prior Action. The issue of whether the statements

made by Montgomery or Schrader before March 10, 2013, were

defamatory as to Shuck was material and relevant to Linn’s loss of
consortium claim.

      D. The Determination Made of the Issue in the Prior Action

Must Have Been Necessary and Essential to the Resulting Judgment.

From the above discussion it is evident this prerequisite is also satisfied.

      We therefore conclude that if we were to decide the district court

erred in granting summary judgment and partial summary judgment on
                                    10

Shuck’s defamation claim based on the statute of limitations, a new trial

would be unnecessary due to issue preclusion. See Griglione v. Martin,

525 N.W.2d 810, 814 (Iowa 1994) (holding even if the district court erred

in not submitting a claim against one defendant, we will not remand the

case for new trial if a factual finding against another defendant would

preclude the dismissed party from establishing an essential element of

the dismissed claim), overruled on other grounds by Winger v. CM

Holdings, L.L.C., 881 N.W.2d 433, 446 (Iowa 2016).

      Therefore, we will not reach the statute of limitations issues

because to do so would be nothing more than giving an advisory opinion.

    VI. Whether the District Court Erred in Granting Summary
Judgment on Shuck’s Malicious Prosecution Claim.

      Shuck argues the district court erred in granting summary

judgment on his malicious prosecution claim because Montgomery and

Schrader’s actions went far beyond merely providing information or

making an accusation.       Rather, Shuck contends, Montgomery and

Schrader instigated or procured his criminal prosecution.

      To prevail on a malicious prosecution claim, a plaintiff must

establish the following:

      (1) a previous prosecution, (2) instigation of that prosecution
      by the defendant, (3) termination of that prosecution by
      acquittal or discharge of the plaintiff, (4) want of probable
      cause, (5) malice on the part of [the] defendant for bringing
      the prosecution, and (6) damage to [the] plaintiff.

Wilson v. Hayes, 464 N.W.2d 250, 259 (Iowa 1990) (quoting Royce v.

Hoening, 423 N.W.2d 198, 200 (Iowa 1988)). At issue in this appeal is

the second element—instigation or procurement of the prosecution.

      There is no genuine issue of material fact that Montgomery and

Schrader merely furnished the information to the authorities and that
                                    11

the authorities made the decision to bring the criminal charges regarding

the water line. Merely furnishing information to the authorities does not

instigate or procure a criminal prosecution. See Lukecart v. Swift & Co.,

256 Iowa 1268, 1281, 130 N.W.2d 716, 724 (1964) (holding that merely

furnishing information to law enforcement or making an accusation does

not constitute instigation “if it is left to the uncontrolled choice of [a]

third person to bring the proceedings or not as he may see fit” (quoting

Restatement (First) of Torts § 653, cmt. b, at 382 (Am. Law Inst. 1938));

cf. Winckel v. Von Maur, Inc., 652 N.W.2d 453, 460 (Iowa 2002) (holding

that the store security officer instigated criminal prosecution by filing a

complaint with the magistrate in order to hold the plaintiff in custody

and such a complaint was required before the police could make an

arrest), abrogated on other grounds by Barreca v. Nickolas, 683 N.W.2d

111 (Iowa 2004).

      Shuck contends the rule—merely furnishing information to the

authorities fails to rise to the level of instigation or procurement of a

criminal prosecution—does not apply when a person knowingly gives

false information. Shuck appears to rely on our decision in Rasmussen

Buick-GMC, Inc. v. Roach, 314 N.W.2d 374, 376–77 (Iowa 1982) (adopting

Restatement (Second) of Torts § 653 cmt. g (1976)).

      Shuck claims a genuine issue of material fact exists as to whether

Montgomery knew about the alleged water line scheme but did not bring

it up in his first meeting with the assistant county attorney in which he

learned the statute of limitations barred all of the alleged claims of

wrongdoing. Further, only after learning about the barred claims, Shuck

asserts, Montgomery brought the water line scheme to the assistant

county attorney’s attention in a subsequent telephone conversation.

Finally, Shuck argues Montgomery and Schrader should have known
                                      12

about the water line issue because Schrader had shut it off in 2010, well

before Montgomery had his first meeting with the assistant county

attorney.

      In Rasmussen Buick-GMC, we stated the general rule in Lukecart

does not apply when a person knowingly gives false information. Id. at

376–77. Applying this exception to the Lukecart rule, we reasoned the

jury had abundant evidence pointing to the defendant’s knowledge

regarding the falsity of the information it provided to the Federal Bureau

of Investigation (FBI). Id. at 376. Thus, we held the defendant procured

the criminal prosecution. Id. at 377.

      Rasmussen Buick-GMC did not explicitly answer the question

whether the act of knowingly furnishing false information is sufficient to

satisfy the instigation element, or whether, in addition to the former, the

public official must also rely on the false information.     However, we

stated in Rasmussen Buick-GMC that the jury could have found there

would have been no prosecution in the absence of the false information,

implying that the FBI relied on the false information in filing a criminal

charge against the defendant. See id.

      The Texas Supreme Court provides compelling reasons why both

prongs—the act of knowingly giving false information and reliance by the

public official—should be required:

      [A] person who knowingly provides false information to . . . a
      law enforcement official who has the discretion to decide
      whether to prosecute a criminal violation cannot be said to
      have [procured] the prosecution if the information was
      immaterial to the decision to prosecute. If the decision to
      prosecute would have been made with or without the false
      information, the [defendant] did not [procure] the prosecution
      by supplying false information.

King v. Graham, 126 S.W.3d 75, 78 (Tex. 2003) (emphasis added).
                                    13

      A recent federal court case is particularly helpful because it

resembles some of the facts of this case. See Perzynski v. Cerro Gordo

County, 953 F. Supp. 2d 916 (N.D. Iowa 2013), aff’d per curiam, 557 F.

App’x 619 (8th Cir. 2014).       In Perzynski, the defendants discovered

unauthorized edits to the plaintiff’s time cards.         Id. at 921.     The

defendants met with the chief deputy to explain the situation and asked

him to investigate for possible criminal charges. Id. They met with the

chief deputy again to discuss a report they had prepared with

calculations showing unauthorized time clock edits.         Id. at 922.   The

chief deputy subsequently conducted an investigation and discussed

whether to file criminal charges with the assistant attorney general. Id.

One of the defendants was present at their final meeting before the chief

deputy filed the criminal complaint.     Id.   After the plaintiff voluntarily

turned herself in, the assistant attorney general filed the trial

information, charging her with theft in the second degree. Id. The judge

dismissed the charges.     Id.    The plaintiff then sued for malicious

prosecution, among other claims. Id. at 924.

      On her malicious prosecution claim, the plaintiff argued the

defendants instigated the prosecution. Id. at 931–32. The court noted

the plaintiff did not offer any evidence as to whether the defendants

improperly influenced the assistant attorney general or whether the

assistant attorney general relied on knowingly false information in

deciding whether to prosecute.     Id. at 932. Moreover, as for the chief

deputy, the evidence failed to demonstrate the defendants knowingly

provided false information or pressured the chief deputy to the extent

their motivation was the determining factor in the chief deputy’s decision

to file the criminal complaint. Id. The chief deputy and the assistant

attorney general—not the defendants—made the independent decision to
                                      14

file formal charges. Id. The court held the defendants merely provided

information or, at most, made an accusation, even if the defendants were

upset about the situation and wanted someone held accountable. Id.

      We now solidify our framework and use it to resolve the issue

before us: the question of complete discretion or lack thereof is whether

the official relied on the knowingly false information. Thus, the plaintiff

must prove the official would not have brought charges in the absence of

the false information the defendant knowingly supplied. In other words,

the false information must have been material to or the determining

factor in the official’s decision to prosecute.

      Viewing the summary judgment record in the light most favorable

to Shuck, we conclude even if Montgomery or Schrader knowingly gave

false information, they did not instigate or procure the prosecution. The

record contains no evidence whatsoever that either Detective Levetzow or

the assistant county attorney relied on the alleged false information in

initiating prosecution. Factually, the evidence points the other direction.

Of importance is Detective Levetzow’s testimony claiming he made his

own determination after an independent investigation as to whether the

charge had merit and his reliance on the hard evidence—the water bills.

Thus, the alleged knowingly false accusations were not material to

Detective Levetzow’s decision to file a criminal complaint.

      To survive summary judgment, the record must contain some

evidence from which the jury could find either (1) Montgomery or

Schrader knowingly gave false information to Detective Levetzow or the

assistant county attorney, and they relied on it in filing the charge or

(2) Montgomery or Schrader engaged in actions that went beyond merely

supplying information or making an accusation.        The record does not

support a genuine issue of material fact exists as to the instigation or
                                       15

procurement element.         Therefore, Shuck’s malicious prosecution claim

fails.

         VII. Disposition.

         We affirm the judgment of the district court because we do not

reach the statute of limitations issues due to the procedural history of

this case and because no genuine issue of material fact exists showing

Montgomery or Schrader instigated or procured the criminal prosecution

against Shuck.

         AFFIRMED.
         All justices concur except Cady, C.J., who takes no part.
