Opinion
No. 2-792 / 01-1334.
Filed December 30, 2002.
Appeal from the Iowa District Court for Montgomery County, CHARLES L. SMITH, III, Judge.
Plaintiff-appellant appeals from the district court's grant of the State's motion for judgment on the pleadings. AFFIRMED.
Frank Robak, Sr. of Robak Law Office, Council Bluffs, for appellant.
W. Curtis Hewett of W. Curtis Hewett, P.C., Council Bluffs, for appellee.
Considered by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Dorothy Marie Meek appeals from the district court's grant of the State's motion for judgment on the pleadings. We affirm.
This case arises out of a June 23, 1997 accident in which Dorothy Meek, as a pedestrian, was struck and injured by a vehicle driven by Debra Fisher. Meek filed a petition alleging the State of Iowa was negligent in failing to exercise due care by issuing a driver's license to Fisher because the State knew or should have known that her physical disabilities, including poor eyesight or extreme vision difficulty, would prevent Fisher from being able to operate a motor vehicle in a safe and reasonable manner. Meek also alleged that she had complied with the Iowa Tort Claims Act, the State's negligence was a proximate cause of her injuries, and as a result of her injuries she suffered damages.
Specifically, Meek alleged in her petition that she had complied with Iowa Code Chapter 669 and had exhausted all of her administrative remedies prior to filing the present action.
The State filed an answer to Meek's petition admitting that Meek, who was a pedestrian, had been struck by a motor vehicle operated by Fisher and that Fisher was a driver licensed by the State of Iowa at the time of the accident. The State also asserted affirmative defenses.
The State filed a motion for judgment on the pleadings on May 24, 2001. It argued it was entitled to dismissal of Meek's petition based on the holding by the Iowa Supreme Court in Kolbe v. State, 625 N.W.2d 721 (Iowa 2001), decided April 25, 2001, a copy of which it attached to and served with its motion. After being rescheduled at least once, the hearing on the State's motion was held on July 16, 2001. Meek's attorney participated in the hearing telephonically. The district court ruled:
Hearing was held on motion for judgment on the pleadings and no written resistance was filed by the plaintiff, however, plaintiff appeared by telephone and orally resisted the motion. The motion is sustained. This case being factually identical to Kolbe versus State of Iowa filed April 24, 2001, in which the court ruled that there is neither statutory nor common law authority for an actionable claim for negligent issuance of a driver's license. Case is dismissed.
We review a grant of judgment on the pleadings for correction of errors at law. Iowa R.App.P. 6.4; Roush v. Mahaska State Bank, 605 N.W.2d 6, 8 (Iowa 2000). A judgment on the pleadings is authorized by Iowa Rule of Civil Procedure 1.954. This rule provides:
Any party may, at any time, on motion, have any judgment to which that party is entitled under the uncontroverted facts stated in all the pleadings, or on any portion of that party's claim or defense which is not controverted, leaving the action to proceed as to any other matter of which such judgment does not dispose.
Iowa R.Civ.P. 1.954.
"The proper function of a motion for judgment on the pleadings is to test the sufficiency of the pleadings to present appropriate issues for trial." Roush, 605 N.W.2d at 8. The motion is only appropriate when the pleadings, taken alone, entitle a party to judgment. Id. at 8-9. In many respects a motion for judgment on the pleadings is reviewed in a similar manner to a motion to dismiss for failure to state a claim upon which any relief may be granted under rule 1.421(1)(f) of the Iowa Rules of Civil Procedure. Stanton v. City of Des Moines, 420 N.W.2d 480, 482 (Iowa 1988). Such a motion to dismiss is sustainable "only when it appears to a certainty the pleader has failed to state a claim upon which relief may be granted under any state of facts which could be proved in support of the claim asserted." Bohan v. Hogan, 567 N.W.2d 234, 235-36 (Iowa 1997). Also in making this determination the pleadings should be construed in the light most favorable to the pleader with all doubts resolved in the pleader's favor and the challenged objections accepted as true. Id. at 236. Just as facts set forth in a plaintiff's petition are accepted as true in deciding a motion to dismiss for failure to state a claim upon which any relief may be granted, Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994), so they are accepted as true in deciding a defendant's motion for judgment on the pleadings. Roush, 605 N.W.2d at 9.
In Kolbe, the plaintiff Charles Kolbe was riding a bicycle when struck and injured by a motor vehicle driven by Justin Schulte. Kolbe, 625 N.W.2d at 724. Schulte, who had a vision condition resulting in loss of central vision and decrease in sharpness of peripheral vision, was driving with a restricted license issued by the State of Iowa. Id. Kolbe and his spouse sued the State of Iowa alleging, among other things, that the State was negligent in issuing driving privileges to Schulte. Id. at 724-25. The district court sustained the State's motion for summary judgment.
The supreme court affirmed. It first held that breach by the State of statutory and regulatory duty concerning licensing, if any had in fact occurred, did not give rise to a cause of action. Id. at 726-27. It then dealt with the Kolbes' claim the State had breached a common law duty. It determined that statutory licensing provisions are for the benefit of the public at large. It rejected the Kolbes' contention they could avoid the preclusive effect of the public duty doctrine by virtue of their membership in a particularized class, rightful users of the Iowa roads. It noted the Kolbes did not claim a special relationship arising out of the particular facts of the case. It held that under such circumstances the State owed the Kolbes no duty upon which the Kolbes' claims of liability could be premised. Id. at 729-30.
On appeal Meek raises two claims of trial court error. She first contends the district court erred by considering facts outside the pleadings and finding this case "factually identical" to Kolbe. We disagree. We read the trial court's ruling, quoted in full above, as doing nothing more than concluding that the facts alleged in Meek's petition, when viewed in the light most favorable to her, are legally indistinguishable from the facts upon which summary judgment was properly granted in Kolbe. We conclude the trial court did not err as claimed.
Meek's second contention is that the trial court erred in failing to grant her the opportunity to amend her petition before dismissing the case, after sustaining the motion for judgment on the pleadings. The State's response appears to be two-fold. Although somewhat unclear because not expressly stated in such terms, the State appears to urge that (1) Meek has not preserved error as she took no steps to amend her petition or seek consent of the State or leave of court to amend, and (2) because Meek has cited no statute, rule, or appellate decision in support of this issue she has waived it. Because of the range of interests protected by our error preservation rules, on appeal we will consider whether error was preserved even if the opposing party does not raise the issue on appeal. Top of Iowa Co-op. v. Fime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000). We proceed to do so.
See Iowa R.App.P. 6.14(1)(c).
Meek asserts the trial court should have, but did not, allow her time to amend her petition "to allow for the possibility that Plaintiff's factual situation was distinguishable from Kolbe, which decision was handed down after Plaintiff's suit was filed." Our supreme court's decision in Kolbe was filed April 25, 2001, almost three months before the hearing and ruling involved in this appeal. A copy of the opinion was attached to the State's motion which was served May 23, 2001, almost two months before the hearing and ruling. Meek does not claim that she at any time before, at, or after the hearing sought consent of the State to amend her petition. She did not, before or at the hearing, attempt to amend her petition or seek leave of court to do so. After the hearing she did not, by post-ruling motion or otherwise, at any time seek to amend her petition.
We do not review issues, even of a constitutional nature, not presented to the trial court and first raised on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982); Estabrook v. Iowa Civ. Rights Comm'n, 283 N.W.2d 306, 311 (Iowa 1979). Because Meek did not at any time in the trial court seek to amend her petition or assert a right to do so she has not preserved error on this claim and we decline to address its merits.