

                        IN THE SUPREME COURT OF IOWA

                              No. 143 / 04-0973

                           Filed January 27, 2006

RICHARD TYLER DICKENS, Individually
and as Special Executor for the ESTATE
OF SHARON KENYON,

      Appellant,

vs.

ASSOCIATED ANESTHESIOLOGISTS, P.C.,

      Appellee.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Polk County, Don C. Nickerson,
Judge.


      Plaintiff appeals the dismissal  of  his  medical  negligence  action.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT  REVERSED  AND
CASE REMANDED.

      Christopher Kragnes, Sr., and Tiffany  Koenig  of  Kragnes,  Tingle  &
Koenig, P.C., Des Moines, for appellant.

      Loree A. Nelson and Barry  G.  Vermeer  of  Gislason  &  Hunter,  LLP,
Des Moines, for appellee.



WIGGINS, Justice.
      Richard Tyler Dickens filed a medical negligence  action  individually
and on behalf of the estate of his deceased  wife,  Sharon  Kenyon,  against
her health care providers including Associated Anesthesiologists, P.C.,  and
its employees, Dr. John C. Jabour and  Rebecca  Meyer,  seeking  damages  in
connection with Sharon’s death.  The district  court  dismissed  Jabour  and
Meyer with prejudice after Dickens failed to serve  them  with  an  original
notice within ninety days after filing his petition.   After  the  dismissal
of   Jabour   and   Meyer,   the   district   court    granted    Associated
Anesthesiologists’ motion for summary judgment on the grounds the  dismissal
of Jabour and Meyer precluded litigation on the  claims  against  Associated
Anesthesiologists.  The court  of  appeals  affirmed  the  district  court’s
judgment.  Because the dismissal  of  Jabour  and  Meyer  did  not  preclude
Dickens’  action  against  Associated  Anesthesiologists,  we   vacate   the
decision of the court of appeals,  reverse  the  judgment  of  the  district
court, and remand the case for  further  proceedings  consistent  with  this
opinion.
      I.  Background Facts and Proceedings.
      In his petition, Dickens alleged his wife died  as  a  result  of  the
negligence  of  various  defendants,  including   anesthesiologist   Jabour,
certified registered nurse anesthetist Meyer, and their employer  Associated
Anesthesiologists.  Dickens  served  Associated  Anesthesiologists  with  an
original  notice.   Associated  Anesthesiologists  filed  a  timely  answer.
Jabour and Meyer claimed  Dickens  did  not  properly  serve  them  with  an
original notice, and they filed a motion to dismiss for Dickens’ failure  to
serve them within ninety days after filing his petition as required by  Iowa
Rule of Civil Procedure 1.302(5).[1]  Dickens did  not  resist  the  motion.
The court granted the motion and entered  an  order  dismissing  the  action
against Jabour and Meyer with prejudice.
      Associated Anesthesiologists then filed a motion for summary  judgment
asserting that the dismissal of Jabour and Meyer was an adjudication on  the
merits    warranting    dismissal    of    their    employer,     Associated
Anesthesiologists.  After Associated Anesthesiologists filed its motion  for
summary judgment, Dickens’ original counsel, Jeff Carter, withdrew from  the
case due to a conflict.   Dickens’  new  counsel  resisted  the  motion  for
summary judgment and filed an affidavit  signed  by  Carter  supporting  the
resistance.  The affidavit stated Carter had conversations  with  Associated
Anesthesiologists’ counsel regarding the  motion  to  dismiss  in  which  he
agreed not to resist the  motion  to  dismiss  and  agreed  to  a  voluntary
dismissal of Jabour and Meyer, based  on  “the  agreement  with  [Associated
Anesthesiologists’] counsel that there was no  difference  substantively  to
the  case  because  [Associated  Anesthesiologists]  was   responsible   for
[Jabour’s and Meyer’s] actions and [Jabour and Meyer] would be available  as
witnesses in this matter.”
      Associated Anesthesiologists filed a response to  the  resistance  and
attached an affidavit of  its  counsel.   Counsel’s  affidavit  stated  that
after the time had expired to file a resistance to the  motion  to  dismiss,
she had a conversation with Carter.  She stated Carter indicated he was  not
concerned about the court dismissing Jabour  and  Meyer  because  Associated
Anesthesiologists would still be in the  lawsuit.   She  denied  making  any
statements that Jabour’s and Meyer’s dismissal would not have a  bearing  on
Associated Anesthesiologists’ liability.  She acknowledged that she wrote  a
letter to Judge Robert Wilson, with  a  copy  to  Carter,  noting  that  the
motion to dismiss was unresisted and asking for a ruling on the  motion.   A
month and a  half  went  by  without  a  ruling  on  the  motion.   Per  the
instructions of the judge’s  clerk,  she  sent  a  second  letter  to  Judge
Wilson, with a copy to Carter.  This  letter  contained  an  unsigned  order
dismissing the case against Jabour and Meyer  with  prejudice,  which  Judge
Wilson signed.
      Prior to the ruling on  the  motion  for  summary  judgment,  Dickens’
second counsel withdrew because  she  left  the  private  practice  of  law.
Dickens’ third and current counsel filed a motion for order  nunc  pro  tunc
requesting the court to  correct  the  prior  order  dismissing  the  action
against Jabour and Meyer with prejudice because the  dismissal  should  have
been without prejudice under rule 1.302(5).  Dickens filed this  motion  ten
months after the court filed the  order  dismissing  the  case.   Associated
Anesthesiologists, Jabour, and Meyer resisted this motion.
      The district court granted Associated  Anesthesiologists’  motion  for
summary judgment and denied Dickens’ motion for order nunc  pro  tunc.   The
court concluded the  dismissal  of  Jabour  and  Meyer  was  not  voluntary;
therefore, it was an adjudication on the merits pursuant  to  Iowa  Rule  of
Civil  Procedure  1.946  precluding  the  action  against  their   employer,
Associated Anesthesiologists, on the theory  of  respondeat  superior.   The
court further concluded an order nunc pro tunc would be  improper  not  only
because the intent of such an order is to  correct  clerical  errors  rather
than alter judicial conclusions, but also in view of the time delay  between
the dismissal and the filing of the motion for order nunc pro tunc.
      Dickens filed an application for interlocutory appeal.  We denied  the
application.  Dickens then  dismissed  the  remaining  defendants  from  his
action without prejudice and filed his notice of appeal.
      We transferred the case  to  our  court  of  appeals.   The  court  of
appeals   affirmed   the   district   court’s   granting    of    Associated
Anesthesiologists’ motion for summary judgment and its  denial  of  Dickens’
motion for order nunc pro tunc.  Dickens sought  further  review,  which  we
granted.
      II.  Issue.
      The dispositive issue on appeal is whether the  district  court  erred
in granting  Associated  Anesthesiologists’  motion  for  summary  judgment.
Consequently, we will not discuss the district court’s denial of the  motion
for order nunc pro tunc.
      III.  Scope of Review.
      Dickens does not claim a genuine issue  of  material  fact  exists  to
preclude summary judgment.  Rather, he claims the district  court  erred  in
concluding the ruling dismissing Jabour and Meyer  was  an  adjudication  on
the   merits   preventing   him   from   proceeding    against    Associated
Anesthesiologists.  Thus, the  only  issue  on  appeal  concerns  the  legal
consequences of Jabour’s and Meyer’s dismissal.  “Our review of  a  granting
or denying of a motion for summary judgment is for correction of  errors  at
law.”  City of Cedar Rapids v. James  Props.,  Inc.,  701  N.W.2d  673,  675
(Iowa 2005).
      IV.  Analysis.
      Dickens  premises  Associated  Anesthesiologists’  liability  on   the
doctrine of respondeat superior.   Under  this  doctrine,  the  employer  is
vicariously liable for the negligent acts of  its  employees.   Brosamle  v.
Mapco Gas Prods., Inc., 427 N.W.2d  473,  475  (Iowa  1988).   The  doctrine
gives the injured party the right  to  sue  the  employer  with  or  without
joining the employee as a party to the action.  Id.  One of the  limitations
of the doctrine is that the employer has no liability  unless  the  employee
is  liable.   Peppmeier  v.  Murphy,  708  N.W.2d  57,  63-64  (Iowa  2005);
Brosamle, 427 N.W.2d at 475.  Therefore, we must decide  if  the  employees’
dismissal precludes litigation on Dickens’ claims against their employer.
      Generally, a valid and final personal judgment rendered in favor of  a
defendant is a bar to another action by the plaintiff  on  the  same  claim.
Peppmeier, 708 N.W.2d at 63; Restatement (Second) of Judgments § 19  (1982).
 An exception to the general rule exists when the judgment  is  a  dismissal
for lack of jurisdiction.  Burlington N. R.R. v.  Bd.  of  Supervisors,  418
N.W.2d 72, 75 (Iowa 1988); Restatement  (Second)  of  Judgments  § 20(1)(a).
This exception will apply  even  if  the  dismissal  specifies  it  is  with
prejudice.  Charchenko v. City of Stillwater, 47 F.3d  981,  985  (8th  Cir.
1995); Restatement (Second) of Judgments  §  20  cmt.  d;  accord  Dep’t  of
Revenue v. Ryan R., 816 N.E.2d 1020, 1023 (Mass. App.  Ct.  2004);  Trujillo
v. Acequia de Chamisal, 439  P.2d  557,  559  (N.M.  Ct.  App.  1968).   The
Restatement (Second) of Judgments explains the rationale for  the  exception
in one of its comments.  The comment provides:

      A  court  in  dismissing  on  any  of  these  grounds  [for  lack   of
      jurisdiction, for improper venue, or for nonjoinder or  misjoinder  of
      parties] may specify that its decision is “with prejudice” or “on  the
      merits,” or words to that effect.  While there are instances in  which
      a court may have discretion to determine that a judgment of  dismissal
      shall operate as a bar . .  .  a  judgment  may  not  have  an  effect
      contrary to that prescribed by the statutes, rules of court, or  other
      rules of law operative in the jurisdiction in which  the  judgment  is
      rendered.  Thus in a jurisdiction having  a  rule  patterned  on  Rule
      41(b) of the Federal Rules of Civil Procedure, a dismissal for lack of
      jurisdiction, for improper venue, or for nonjoinder may not be  a  bar
      regardless of the specification made.  And even in the absence of such
      a rule, a dismissal on any of these grounds is so plainly based  on  a
      threshold determination that a specification that the  dismissal  will
      be a bar should ordinarily be of no effect.
Restatement (Second) of Judgments § 20 cmt. d.
      The Restatement position is consistent with  our  case  law  governing
when the dismissal of an employee has  a  preclusive  effect  on  an  action
against the employer under a theory of respondeat superior.  In one  of  our
cases,  the  district  court  granted  the  employee’s  motion  for  summary
judgment.  Peppmeier, 708 N.W.2d at 61.  The employer claimed the ruling  on
the motion for summary judgment exonerating the employee was a final bar  as
to the liability of the employee and res judicata as to  the  claim  against
the employer.  Id. at 61, 64.  There we held a summary judgment is  a  final
bar as to the liability of the employee; therefore, it is  res  judicata  in
favor of the employer and the plaintiff could not proceed  with  her  action
against the employer.  Id. at 66.
      In another case, the plaintiffs voluntarily dismissed an employee with
prejudice, stating they did not intend to dismiss their claims  against  the
employer.  Brosamle, 427 N.W.2d at 474.  The employer claimed the  dismissal
of the employee was an adjudication on the merits as to  the  claim  against
the employee and was res judicata as to  the  claim  against  the  employer.
Id.  There we held the voluntary dismissal of the  employee  with  prejudice
was not res judicata and plaintiffs could proceed with their action  against
the employer.  Id. at 474, 476.  In  reaching  this  conclusion,  we  agreed
with the reasoning of the Montana Supreme Court when it said:

      “We conclude that the better rule is that  dismissal  of  a  defendant
      ‘with prejudice’ does not release other defendants who may  be  liable
      under a theory of respondeat superior, unless the document intends  to
      do so, or the payment is full compensation, or the  release  expressly
      so provides.  This [conclusion] . . . reflects the tactical reality of
      dismissals of less than all defendants in multi-party tort litigation.
       It also reflects the  inappropriateness  in  modern  practice  of  an
      interpretation which finally disposes of substantive issues based on a
      technical misstep by counsel.”

Id. at 476 (alterations in original) (citation omitted).
      Applying these principles to the facts of this case, the dismissal  of
Jabour and Meyer does not preclude  Dickens  from  going  forward  with  his
claims against Associated Anesthesiologists even though the  district  court
included the words “with prejudice” in its dismissal.  Prior to January  24,
1998, our rules of civil procedure did not include a time limit for  serving
an original notice.  Our case law presumed a delay  in  service  beyond  120
days after the filing of a petition was abusive.  See Henry v.  Shober,  566
N.W.2d 190, 192 (Iowa 1997) (finding a 169-day  delay  to  be  presumptively
abusive); Alvarez v. Meadow Lane Mall  Ltd.  P’ship,  560  N.W.2d  588,  591
(Iowa 1997) (finding a 159-day delay  to  be  presumptively  abusive).   Our
case law further held  that  if  the  delay  in  service  was  presumptively
abusive and not justified, the court must  dismiss  the  suit.   Henry,  566
N.W.2d at 192; Alvarez, 560 N.W.2d at 591.  At that time,  a  dismissal  for
abusive delay of process was  an  adjudication  on  the  merits  and  barred
refiling of the same action.  Becker v. Becker, 603 N.W.2d  627,  628  (Iowa
1999).
      Effective January 24, 1998, we amended our rules of civil procedure to
provide:

           If  service  of  the  original  notice  is  not  made  upon  the
      defendant, respondent, or other party to  be  served  within  90  days
      after  filing  the  petition,  the  court,  upon  motion  or  its  own
      initiative after notice  to  the  party  filing  the  petition,  shall
      dismiss the action without prejudice as to that defendant, respondent,
      or other party to be served . . . .

Iowa R.  Civ.  P.  1.302(5)  (emphasis  added).[2]   The  adoption  of  rule
1.302(5) overruled our prior case law.  Consequently, an  action  filed  and
dismissed for failure to serve the original notice in a timely manner  after
the effective date of this amendment is not a dismissal on the merits.
      Dickens filed his petition in  August  2002.   Although  the  district
court signed an order provided by defense counsel that  included  the  words
“with prejudice,” factually the district court dismissed  Jabour  and  Meyer
from the suit because Dickens failed to serve  them  within  the  ninety-day
time limit of rule 1.302(5).  In other words, the district  court  dismissed
Jabour and Meyer from the lawsuit because the lack of service precluded  the
court  from  obtaining  personal  jurisdiction  over  them.   Rule  1.302(5)
specifically provides such a dismissal is not a  dismissal  on  the  merits.
Under  our  case  law  and  the  Restatement,  a  dismissal  for   lack   of
jurisdiction is not res judicata and is  not  the  type  of  dismissal  that
would preclude Dickens from proceeding  on  his  claims  against  Associated
Anesthesiologists.  See Burlington N. R.R., 418 N.W.2d  at  75;  Restatement
(Second) of Judgments § 20(1)(a).  Accordingly, the  district  court  should
not have granted Associated Anesthesiologists’ motion for summary judgment.
      V.  Disposition.
      Because the dismissal  of  Jabour  and  Meyer  did  not  preclude  the
litigation of  Dickens’  claims  against  Associated  Anesthesiologists,  we
vacate the decision of the court of appeals, reverse  the  judgment  of  the
district court, and remand the case for further proceedings consistent  with
this opinion.
       DECISION  OF  COURT  OF  APPEALS  VACATED;  DISTRICT  COURT  JUDGMENT
REVERSED AND CASE REMANDED.
-----------------------
      [1] The motion cited  Iowa  Rule  of  Civil  Procedure  1.302(6).   We
renumbered this rule as rule 1.302(5),  effective  February  1,  2003.   All
references in this opinion will be to rule 1.302(5).
      [2] When we adopted this amendment in 1998, we  numbered  it  as  Iowa
Rule of Civil Procedure 49(f).  Effective February 15, 2002,  we  renumbered
it as rule 1.302(6).  Effective February 1, 2003, we renumbered it  as  rule
1.302(5).

