Jahn Patric Kirlin and Sara Louise Kirlin v. Barclay A. Monaster, Christian William Jones, and Physicians Clinic, Inc., d/d/a Methodist Physicians Clinic- Council Bluffs

IN THE SUPREME COURT OF IOWA

No. 22–0405

Submitted November 16, 2022—Filed January 6, 2023

JAHN PATRIC KIRLIN and SARA LOUISE KIRLIN,

Appellants,

vs.

BARCLAY A. MONASTER, CHRISTIAN WILLIAM JONES, and PHYSICIANS
CLINIC, INC. d/b/a METHODIST PHYSICIANS CLINIC–COUNCIL BLUFFS,

Appellees.

Appeal from the Iowa District Court for Pottawattamie County,

Michael Hooper, Judge.

Plaintiffs in a medical malpractice action appeal from the district court’s

grant of summary judgment for the defendants. REVERSED AND REMANDED.

Oxley, J., delivered the opinion of the court, in which all participating

justices joined. Christensen, C.J., took no part in the consideration or decision

of the case.

Kelly N. Wyman (argued), Council Bluffs, and Dean T. Jennings, Council

Bluffs, for appellants.

Bryony J. Whitaker (argued), Frederick T. Harris, and Agnieszka M.

Gaertner (until withdrawal) of Lamson Dugan & Murray LLP, West Des Moines,

for appellee Barclay A. Monaster.
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Robert A. Mooney (argued) and Betsy Seeba-Walters of Mooney, Lenaghan,

Westberg Dorn, L.L.C., Omaha, Nebraska, for appellees Christian William Jones

and Physicians Clinic, Inc. d/b/a Methodist Physicians Clinic–Council Bluffs.
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OXLEY, Justice.

This case raises questions about the interplay between the plaintiffs’ right

to voluntarily dismiss their own petition under Iowa Rule of Civil Procedure 1.943

and the requirement for a plaintiff in a medical malpractice action to provide a

certificate of merit affidavit signed by a qualified expert witness within sixty days

of the defendant’s answer or face dismissal with prejudice under Iowa Code

section 147.140(6) (2021). The plaintiffs timely filed a certificate of merit affidavit

in their medical malpractice case but then voluntarily dismissed the case after

the defendants challenged the qualifications of the expert witness who signed

the affidavit. The plaintiffs then refiled their case and provided a certificate of

merit affidavit signed by a different expert witness. The defendants argued the

plaintiffs were bound by the purportedly deficient certificate of merit from the

first case, and the district court agreed, granting summary judgment to the

defendants in the second case.

We addressed related issues in another opinion filed today, Ronnfeldt v.

Shelby County Chris A. Myrtue Memorial Hospital, ___ N.W.2d ___ (Iowa 2022),

where we reaffirmed a plaintiff’s right to voluntarily dismiss her medical

malpractice case without prejudice under rule 1.943, even in the face of a

pending motion seeking dismissal with prejudice under section 147.140(6). The

question we must now answer is whether a plaintiff who files a noncompliant

certificate of merit and then voluntarily dismisses the case is stuck with the

certificate filed in the first case when bringing a second action. For the reasons

stated below and in Ronnfeldt, we answer that question in the negative.
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I. Factual and Procedural History.

In the spring of 2019, Jahn Kirlin sought medical treatment for persistent

pain in his head and neck. Dr. Christian Jones, of the Methodist Physicians

Clinic–Council Bluffs, recommended Jahn take medications to manage his pain

over the short-term and suggested an MRI could be necessary if his symptoms

did not improve. Jahn’s symptoms did not improve, and when he returned to

receive further treatment, he was placed in Dr. Barclay Monaster’s care.

Dr. Monaster did not order an MRI, however, recommending instead that Jahn

continue managing his pain as before. Jahn experienced a stroke soon after that

visit.

On September 11, 2020, Jahn and his wife Sara (the Kirlins) filed their

first petition against Dr. Jones, Dr. Monaster, and Methodist Physicians Clinic

(the Defendants)1 alleging negligence and seeking compensation for Jahn’s

injuries and Sara’s loss of consortium. The Kirlins timely filed a section 147.140

certificate of merit affidavit on October 2, signed by Dr. David Segal, a board-

certified neurosurgeon.2 The Defendants challenged the certificate on the basis

that Dr. Monaster is a family physician and Dr. Segal was not board-certified in

family medicine. See Iowa Code §§ 147.139(1) (requiring the affiant to be

“licensed to practice in the same or a substantially similar field as the

1That petition also contained claims against a chiropractor and his clinic, but those

defendants were omitted from the refiled case from which this appeal is taken.
2DefendantsDr. Jones and Methodist Physicians Clinic assert there is no evidence in the
record that the certificate of merit was served on them, as required by Iowa Code section
147.140(1)(a). The district court did not address the lack of service, which has no bearing on the
outcome of the appeal. We therefore do not address it further.
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defendant”), .139(3) (“If the defendant is board-certified in a specialty, the [affiant

must be] certified in the same or a substantially similar specialty . . . .”),

.140(1)(a) (requiring that the expert affiant “meet the qualifying standards of

section 147.139”). Before the district court could issue a ruling on those motions,

however, the Kirlins voluntarily dismissed their petition without prejudice under

Iowa Rule of Civil Procedure 1.943.

The Kirlins refiled their petition on April 14, 2021, and provided a new

certificate of merit signed by Dr. Brian Smith—board-certified in family

medicine—who opined that each defendant in the second case breached the

standard of care. The Defendants moved to dismiss the second case on the basis

that the certificate of merit signed by Dr. Segal from the first case was deficient.

The district court denied the Defendants’ motions to dismiss because, at the

pleadings stage, it could not consider facts outside the Kirlins’ petition, including

Dr. Segal’s certificate of merit from the first case. The Defendants then filed

answers and moved for summary judgment on the same bases as alleged in their

motions to dismiss, again relying on their challenge to Dr. Segal’s certificate of

merit. The Defendants did not challenge whether Dr. Smith’s certificate of merit

affidavits complied with section 147.140. Their claim was limited to whether the

certificate of merit affidavit the Kirlins filed in the first case entitled them to

dismissal of the second case.

Now having the ability to consider filings outside of the petition, the district

court granted the Defendants’ motions for summary judgment. The district court

first determined that it could consider the issue of statutory compliance from the
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first case by extending our holding in Darrah v. Des Moines General Hospital,

436 N.W.2d 53 (Iowa 1989), and characterizing the dismissal requirement in

section 147.140 as a sanction. The district court took “the same stance with

respect to enforcing sanctions after a voluntary dismissal [as Darrah] because

without the authority to impose sanction[s], the rule effectively loses the teeth

originally intended by the ‘harsh consequence’ of [section 147.140], the

legislative intent as outlined in McHugh v. Smith, 966 N.W.2d 285 (Iowa Ct. App.

Mar. 17, 2021).” After determining that the Kirlins’ first certificate of merit did

not substantially comply with section 147.140, the district court noted it would

have been required to “dismiss the Plaintiffs[’] claims with prejudice in the

previous case had there been the procedure to address the enforcement of the

sanction. Unfortunately, there is no procedure yet written that affords the courts

the ability to address an unsettled motion in order to determine the defendants’

rights without resorting to a successive case.” The district court then granted the

Defendants’ motions for summary judgment, dismissing the second case based

on the deficient certificate of merit filed in the first case.

The Kirlins appealed. We retained the appeal to clarify the interplay

between section 147.140 and rule 1.943.

II. Standard of Review.

We review summary judgment motions for correction of errors at law.

Lennette v. State, 975 N.W.2d 380, 388 (Iowa 2022). Summary judgment is

proper only if the record reflects “no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ.
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P. 1.981(3). Because this appeal turns on the district court’s application of

section 147.140, “summary judgment is the proper vehicle to test the validity of

[the] claim . . . [and] we need only decide whether the district court properly

applied the law.” Hill v. State, Dep’t of Hum. Servs., 493 N.W.2d 803, 804–05

(Iowa 1992) (citation omitted); see also Johnson v. Associated Milk Producers,

Inc., 886 N.W.2d 384, 389 (Iowa 2016) (“Summary judgment is proper if the only

issue is the legal consequences flowing from undisputed facts.” (quoting Peak v.

Adams, 799 N.W.2d 535, 542 (Iowa 2011))).

III. Analysis.

Today’s related case, Ronnfeldt, ___ N.W.2d ___, resolves this appeal.

There, we held that a plaintiff’s voluntary dismissal under rule 1.943 mooted the

defendants’ pending motion to dismiss premised on noncompliance with section

147.140’s certificate of merit requirements, and the plaintiff’s first dismissal was

without prejudice as provided by rule 1.943. Id. at ___. We concluded that rule

1.943 and section 147.140 are not irreconcilably conflicting for two reasons.

Id. at ___. First, the plain text of those provisions does not put them at odds—

rule 1.943 says nothing about certificates of merit, and section 147.140 says

nothing about voluntary dismissals. Id. at ___. Second, section 147.140 is not

self-executing and can only apply when there is a case over which it can govern,

which is lost once the plaintiff voluntarily dismisses her action under rule 1.943,

which is self-executing. Id. at ___. Once the case was voluntarily dismissed

without prejudice, the section 147.140 motion was mooted as there was nothing

left to rule on when the district court granted the defendants’ motion to
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reconsider their motion to dismiss. Id. at ___ (concluding that “the district court

lacked jurisdiction to posthumously resurrect and rule on” the defendants’

motion to dismiss after the case was voluntarily dismissed).

If a court in the same case cannot rule on the validity of a section 147.140

motion after a voluntary dismissal, it is hard to imagine how a later court could

do so in a second case. The district court here was astute in recognizing that

“there is no procedure yet written that affords the courts the ability to address

an unsettled motion” under section 147.140 after a voluntary dismissal. That is

because none was written into the statute. Unless, and until, the general

assembly expressly provides that rule 1.943 does not apply when a motion is

pending under section 147.140, we continue to apply our jurisprudence under

that rule.

In Ronnfeldt, we also rejected the district court’s reliance on Darrah, which

allowed continuing jurisdiction over collateral issues even after the district court

lost jurisdiction over the merits of a case. Id. at ___ (distinguishing Darrah). The

right to dismissal under section 147.140 when a plaintiff fails to provide a

compliant certificate of merit goes to the merits of the action, not a matter

collateral to the underlying action, so there is nothing over which the district

court could retain jurisdiction once the action is voluntarily dismissed. Id. at ___;

cf. Sorensen v. Shaklee Corp., 461 N.W.2d 324, 324–26 (Iowa 1990) (en banc)

(reversing the district court’s order granting summary judgment where plaintiffs

voluntarily dismissed their petition prior to the court’s ruling, explaining that

“the summary judgment motion . . . became moot with the dismissal of the suit”).
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In distinguishing Darrah, we recognized that rule 1.943 allows only one

voluntary dismissal without prejudice, so giving effect to a plaintiff’s absolute

right to dismiss her petition does not frustrate the legislative purpose behind

section 147.140. Ronnfeldt, ___ N.W.2d at ___. That same reasoning defeats the

Defendants’ reliance on Darrah here. Where a section 147.140 dismissal goes to

the merits of the Kirlins’ claims, and the Kirlins voluntarily dismissed the

underlying case, this case follows Sorensen, and the Defendants’ lack of redress

is of no moment.

The Defendants assert that a compliant certificate of merit affidavit is a

substantive right that nonetheless “attached” once they filed section 147.140

motions in the first case. But as with the argument we rejected in Ronnfeldt—

that section 147.140 vests defendants with a right to dismissal with prejudice as

soon as a motion is filed—we see nothing in that statute supporting this

argument. Ronnfeldt, ___ N.W.2d at ___. District courts still have substantive

considerations to make that could keep a plaintiff’s case alive, in whole or in

part; the outcome of a section 147.140(6) motion is not inexorable upon filing.

Id. at ___. Further, their argument ignores the effect of a rule 1.943 dismissal. “A

dismissal without prejudice leaves the parties as if no action had been instituted.

It ends the particular case but is not such an adjudication itself as to bar a new

action between the parties.” Venard v. Winter, 524 N.W.2d 163, 163, 167 (Iowa

1994) (quoting Windus v. Great Plains Gas, 116 N.W.2d 410, 415–16 (Iowa

1962)). The Defendants’ assertion that plaintiffs in a medical malpractice action

are limited to the certificate of merit they file in their first case would essentially
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gut the “without prejudice” part of a voluntary dismissal, see Iowa R. Civ. P.

1.943 (“A dismissal under this rule shall be without prejudice . . . .” (emphasis

added)), which allows plaintiffs—once—to refile their claims, see ACC Holdings,

LLC v. Rooney, 973 N.W.2d 851, 852 (Iowa 2022) (stating that “[rule] 1.943 allows

plaintiffs to dismiss their petitions without prejudice and start over—once,” as a

matter of right).

The Defendants do make one argument not addressed in Ronnfeldt,

pointing to language in Witt Mechanical Contractors, Inc. v. United Brotherhood of

Carpenters, Local 772, 237 N.W.2d 450 (Iowa 1976), where we said that the effect

of a voluntary “dismissal when defendant’s pleadings are solely defensive is final

and terminates the jurisdiction of the court thereof,” id. at 451. Seizing on the

“solely defensive” qualification, the Defendants argue that their motions in the

first case seeking to enforce section 147.140 transformed “the stance of the

pleadings from merely defending against Plaintiffs’ claims to asserting an

affirmative right to substantive relief.”

Aside from the obvious example of a counterclaim, however, the

Defendants cite no examples of an “offensive” pleading being used to retain a

court’s jurisdiction after a rule 1.943 dismissal, let alone a case where we have

even defined the phrase “solely defensive.” The closest this court has come to

defining that phrase appears to have been in a 1920s case upholding a plaintiff’s

voluntary dismissal and finding no offensive pleadings existed. Eclipse Lumber

Co. v. City of Waukon, 213 N.W. 804, 807–08 (Iowa 1927). Looking to a case from

1904 for guidance (which similarly found no offensive pleadings at issue), we
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narrowed the inquiry to “the contents of the pleading,” rather than its technical

label, and said that for a pleading to become offensive, it must in essence state

its own cause of action:

Thus it will not be sufficient if it appear that the averments of the
pleading are all defensive in character; that is, a statement of
matters of fact brought forward, designed and intended simply to
defeat, in whole or in part, a recovery by plaintiff. To entitle a
defendant to proceed, his pleadings must state an independent
cause of action, with an appropriate demand for relief. It is not
material that the cause stated involves, to a greater or less extent,
the subject-matter of the cause of action as stated by plaintiff in
his petition, but it must contain within itself the essential elements
of a cause of action. In legal effect, the defendant becomes plaintiff,
and the plaintiff becomes defendant.

Id. at 807 (emphases added) (quoting Stewart v. Gorham, 98 N.W. 512, 515 (Iowa

1904)).

The only thing the Defendants claim section 147.140 entitles them to is

dismissal of the Kirlins’ petition with prejudice—they do not set up an

independent cause of action or take on the role of plaintiff simply by filing a

motion to dismiss or for summary judgment. Nor could they, as section

147.140(6) is “designed and intended simply to defeat, in whole or in part, a

recovery by plaintiff[s]” when the statutory requirements are not met. Stewart,

98 N.W. at 515; see Struck v. Mercy Health Servs.-Iowa Corp., 973 N.W.2d 533,

542 (Iowa 2022) (“[T]he certificate of merit requirement serves to ‘identify and

weed non-meritorious malpractice claims from the judicial system . . . .’ ”

(quoting Womer v. Hilliker, 908 A.2d 269, 275 (Pa. 2006))).

When the Kirlins voluntarily dismissed their first suit, it became

“nonexistent” and “unreviewable.” See Lawson v. Kurtzhals, 792 N.W.2d 251,
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255 n.2 (Iowa 2010). Section 147.140 ceased operating, as it lacked a case over

which to govern, and the Defendants’ motions seeking to enforce that statute

became moot. See Ronnfeldt, ___ N.W.2d at ___. When the Kirlins then refiled

their suit, section 147.140 applied anew, and the Kirlins could not have relied

on a certificate of merit from a previously filed and dismissed case to satisfy the

statute any more than the Defendants may now rely on such a certificate to

defeat the refiled petition. The district court erred as a matter of law when it

granted summary judgment based only on the certificate of merit affidavit signed

by Dr. Segal and provided in the dismissed case.

IV. Conclusion.

The district court’s order granting summary judgment is reversed, and the

case is remanded for further proceedings.

REVERSED AND REMANDED.

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