Opinion
No. 4-295 / 03-0556.
September 29, 2004.
Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.
Britton Johnson appeals the district court's grant of summary judgment to defendants on his claims arising from the settlement of a lawsuit with a third party without his consent. AFFIRMED.
Tom Riley of Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.
Mark L. Tripp and Megan M. Althoff of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellee EMC Insurance Companies.
Jim D. DeKoster and Kevin R. Rogers of Swisher Cohrt, P.L.C., Waterloo, for appellees City of Coralville, Bedford, and Hayworth.
John Werner of Grefe Sydney, P.L.C., Des Moines, for appellees Donald L. Diehl and Kirstene Diehl.
James R. Hellman, David J. Dutton, and Carolyn A. Rafferty of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellee Gruhn.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
I. Background Facts Proceedings
Michael Constantino sued Coralville Police Officer Britton Johnson and his employer, the City of Coralville, for tort damages allegedly caused by Johnson's misconduct during a robbery investigation and Constantino's subsequent criminal prosecution. After consulting the City's liability carrier, EMC Insurance Companies, the City agreed to settle with Constantino before filing any responsive pleadings to Constantino's petition. Johnson was not consulted, nor was his consent obtained before the City settled with Constantino.
As a result of Constantino's allegations, Johnson's employment was terminated with the City. On appeal to the Iowa Supreme Court, the City's decision to terminate Johnson was affirmed. The Court's opinion provides, in pertinent part:
By his actions, Johnson, a veteran of almost thirty years who should know better, not only withheld information when he failed to disclose in his report that he made promises of leniency to a suspect but also lied about it in court proceedings. His lack of credibility was so obvious that a federal district court judge commented on it. In these circumstances, to allow Johnson to remain on the job would potentially taint any investigation in which he might be involved. No police department should be put in that position. Nor should citizens be subjected to an officer who has no compunction about stretching the truth concerning his conduct involving the citizen's constitutional rights. Truly, Johnson's conduct was detrimental to the public interest.
Civil Serv. Comm'n of Coralville v. Johnson, 653 N.W.2d 533, 542 (Iowa 2002). On June 7, 1998, Johnson sued the City and the other named defendants in this case to recover damages allegedly caused by the City's decision to settle with Constantino rather than defend on the merits. Johnson claims that decision deprived him of his right to counterclaim against Constantino for malicious prosecution or seek appropriate sanctions from Constantino for the false and scurrilous content of Constantino's petition.
The City and other named defendants moved for summary judgment dismissing Johnson's lawsuit. The defendants' various theories supporting summary judgment as noted by the trial court were:
Among the bases urged for summary judgment are: (1) EMC's insurance contract permitted the company to settle a claim against Johnson without his consent; (2) Coralville had a statutory right pursuant to 670.9 of the Iowa Code to settle an underlying lawsuit without Johnson's consent; (3) Johnson is precluded from relitigating conduct of which he was accused in the initial suit against him and the City of Coralville; (4) it has been determined, as a matter of law, in the Civil Service Commission case that Johnson's conduct as a police officer provided probable cause for the suit that had been brought against him; and (5) Johnson's claim against the Defendants should be dismissed pursuant to public policy considerations.
The trial court granted the defendants' summary judgment motion on several of these grounds including the following:
Finally, the court concludes Johnson's petition should be dismissed on public policy grounds. The court recognizes that extreme caution should be exercised before deciding a case on "public policy" grounds. In State v. Derifield, 510 N.W.2d 885 (Iowa 1994), the Court noted the general rule relating to public policy. It is, "A person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or to maintain a claim for damages based on his own wrong." Id. at 888 (citing Cole v. Taylor, 301 N.W.2d 766, 768 (Iowa 1981)). Since the Iowa Supreme Court has already determined Johnson made improper promises of leniency to a suspect during interrogation and subsequently lied about his conduct under oath before the court, it would be entirely against public policy to permit Johnson to proceed with his claim against the Defendants.
Johnson's petition was accordingly dismissed, resulting in this appeal.
II. Standard of Review
We review a district court's ruling on a motion for summary judgment for correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank Trust, 588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the moving party shows there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. See Iowa R. Civ. P. 1.981(3). We consider the evidence in the light most favorable to the nonmoving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
III. Disposition
We initially note that Johnson failed to raise any issue concerning the trial court's ruling dismissing his petition on public policy grounds until he filed his reply brief. An issue raised for the first time in a reply brief is not properly preserved for our review. Sun Valley Iowa Lake Assoc. v. Anderson, 551 N.W.2d 641, 642 (Iowa 1996).
Johnson instead claims the trial court's ruling must be reversed because the court misapplied the doctrine of in pari delicto. The doctrine of in pari delicto provides "that where a contract is illegal, . . . the law will not afford affirmative relief to either, but will leave the parties as it found them." Mlynarik v. Bergantzel, 675 N.W.2d 584, 587 (Iowa 2004) (quoting Allison v. Hess, 28 Iowa 388, 390 (1870)). The doctrine may apply in other types of civil actions. General Car Truck Leasing Sys., Inc. v. Lane Waterman, 557 N.W.2d 274, 279 (Iowa 1996). The term " in pari delicto" means equally at fault. Mlynarik, 675 N.W.2d at 588 (citing Black's Law Dictionary 794 (7th ed. 1999)). The doctrine applies to situations where the plaintiff and defendant have acted together to perform some wrong or deceive a third party. See Federal Deposit Ins. Corp. v. Oehlert, 252 N.W.2d 728, 731 (Iowa 1977). Johnson correctly argues the doctrine of in pari delicto does not apply under the facts of this case because there are no allegations that Johnson acted in concert with the defendants to deceive another.
The problem, however, is that the trial court's ruling is premised on public policy grounds and not the doctrine of in pari delicto. We find no reference to that doctrine in the trial court's ruling, nor do any of the cases cited by the trial court pertain to that doctrine. Because the doctrine of in pari delicto was not raised or considered by the trial court, we will not consider it for the first time on appeal. Kemin Indus., Inc. v. KPMG Peat Marwick, LLP, 578 N.W.2d 212, 215 (Iowa 1998).
As noted earlier, the trial court's ruling dismissed all of Johnson's theories of liability against all defendants on public policy grounds. Johnson's failure to properly preserve that issue for our review requires us to affirm the trial court's judgment dismissing his lawsuit against the City and all named defendants. Because we have affirmed the trial court's judgment for reasons not challenged on appeal, we need not consider any of the remaining issues. See Tate v. Derifield, 510 N.W.2d 885, 887-88 (Iowa 1994).