# Smith v. Smith

> Supreme Court of Iowa · June 12, 2002 · 646 N.W.2d 412

URL: https://www.frixlaw.com/law-library/cases/9518670

## Case

- **Full name:** Shirley Ann SMITH, Individually and as Parent and Next Friend of Levi Raymond Smith, a Minor, Appellant, v. Raymond Francis SMITH, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** June 12, 2002
- **Citations:** 646 N.W.2d 412; 2002 Iowa Sup. LEXIS 114; 2002 WL 1285888
- **Precedential status:** Published
- **Opinion:** Dissent by Cady
- **Judges:** Larson, Cady, Ternus
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9518670

## Opinion text

CADY, Justice
(dissenting).
I respectfully dissent.
The majority failed to reach the disposi-tive issue in this case by misapplying the waiver doctrine and by failing to recognize the discretion of the trial court.
Even if parental immunity is an affirmative defense that must be pled, the failure of the defendant in this case to raise it until the eve of trial does not constitute a waiver of the defense. Certainly, we recognize a defendant generally waives an affirmative defense if it is not raised in a pleading. Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996). Yet, the rationale for this waiver rule is founded on the reason certain defenses are required to be raised as affirmative defenses, and others are not. An affirmative defense is one that rests on facts not necessary to support the plaintiffs case. Bond v. Cedar Rapids Television Co., 518 N.W.2d 352, 355 (Iowa 1994). Thus, a fair trial requires a defendant to give notice to a plaintiff of a defense to a claim not associated with proof of the claim so that the plaintiff will be able to present evidence at trial to overcome the defense. Therefore, the pleading requirement provides the essential notice and opportunity to the plaintiff to fully address the defense at trial.
Yet, the waiver requirement comes from the delay in asserting the affirmative defense until the plaintiff has tried the case, not from the procedural requirement of raising it in a pleading. This explains why the waiver rule does not apply when the underlying issue is tried by consent of the parties. Dutcher, 546 N.W.2d at 893 . It is also consistent with our liberal approach to allowing amendments to pleadings, even during trial. See Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002). The idea is that if a defendant holds back on an affirmative defense until it is too late for the plaintiff to address the defense, the defense is waived. In this case, the majority failed to apply the waiver doctrine consistent with its rationale.
In truth, the procedural background of this case is not about waiver, but the discretion of a trial court to permit a defendant to raise a dispositive issue on the eve of trial. Clearly, the trial court has broad discretion in this area, and we are not justified to interfere with such discretion absent a clear abuse of authority. See id. at 766 .
In this case, although the immunity issue was presented on the eve of trial, the plaintiff did not suffer the type of prejudice that would support a finding of an abuse of discretion. The issue was solely one of law, and the plaintiffs facts were considered without dispute and in a light most favorable to the plaintiff.
*417 The holding in this case has stripped trial courts of their discretion to consider untimely issues, and expanded the waiver doctrine far beyond its intended parameters. Clearly, the defendant in this case should have raised the untimely defense early in the proceedings. Furthermore, the plaintiff was understandably justified in feeling ambushed at trial and frustrated by the pretrial procedure employed by the defendant. Yet, as repugnant as the procedure may have been, it caused no real prejudice under the circumstances. We should address the dispositive issue raised in this appeal.
TERNUS, J., joins this dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9518670. Public record. Not legal advice.