Defendant's Attorney: 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.
Description: 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
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
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
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.
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.
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.
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
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.
(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
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
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
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
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
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
about the water line issue because Schrader had shut it off in 2010, well
before Montgomery had his first meeting with the assistant county
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).
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
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
procurement element. Therefore, Shuck’s malicious prosecution claim
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