Nicole K. Brinkman v. City of Des Moines, Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-1192

Filed October 11, 2023

NICOLE K. BRINKMAN,

Plaintiff-Appellee,

vs.

CITY OF DES MOINES, IOWA,

Defendant-Appellant.

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Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.

The City of Des Moines appeals the denial of its motion to dismiss a

municipal tort claim based on the heightened pleading standard in Iowa Code

section 670.4A(3). AFFIRMED.

Luke DeSmet, Des Moines, for appellant.

Jeff Carter and Zachary C. Priebe of Jeff Carter Law Offices, P.C., Des

Moines, for appellee.

Considered by Tabor, P.J., Buller, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).

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TABOR, Presiding Judge.

Nicole Brinkman alleges that she was injured in April 2020 when she

crashed her scooter on rough sidewalk along Maple Street on the east side of Des

Moines. In November 2021, she sued the city, alleging it was negligent for not

properly maintaining the sidewalk and not warning users of the unsafe condition.

The city moved to dismiss her petition, asserting she ignored a newly enacted

pleading standard for municipal tort claims. See Iowa Code § 670.4A(3) (2021).1

After Brinkman twice amended her petition, the district court declined to dismiss,

and the city appealed.

The city contends that because Brinkman’s second amended petition did

not plead that the law was clearly established at the time of the alleged violation,

dismissal with prejudice was the only option. We disagree with the city’s

contention but rely on a different reason than the district court. Because the

legislature did not make that “clearly established” standard retrospective, we

cannot apply it here. See Nahas v. Polk Cnty., 991 N.W.2d 770, 780 (Iowa 2023).

In June 2021—between the date of Brinkman’s crash and the filing of her

petition—a qualified-immunity amendment to the Iowa Municipal Tort Claims Act

(IMTCA) took effect. 2021 Iowa Acts ch. 183, § 14 (codified at Iowa Code § 670.4A

1 That statute provides:

A plaintiff who brings a claim under this chapter alleging a violation

of the law must state with particularity the circumstances constituting

the violation and that the law was clearly established at the time of

the alleged violation. Failure to plead a plausible violation or failure

to plead that the law was clearly established at the time of the alleged

violation shall result in dismissal with prejudice.

Iowa Code § 670.4A(3).

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(2022)). That amendment included changes to the legal requirements for filing a

petition under the IMTCA. Id. § 670.4A(3).

Before the statute’s effective date, a tort claim against a municipality only

needed to satisfy Iowa’s notice pleading standards. Nahas, 991 N.W.2d at 776.

Under notice pleading, a petition must contain factual allegations that give the

defendant “fair notice” of the event giving rise to the claim and the claim’s general

nature. Id. (quoting Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004)).

But after June 2021, there is a heightened pleading hurdle under the IMTCA. Id.

at 777. That higher bar has three features. Victoriano v. City of Waterloo, 984

N.W.2d 178, 181 (Iowa 2023). First, plaintiffs “must state with particularity the

circumstances constituting the violation.” Iowa Code § 670.4A(3). Second, they

must plead “a plausible violation” of the law. Id. And third, they “must state . . .

that the law was clearly established at the time of the alleged violation.” Id.

In its motion to dismiss Brinkman’s original petition, the city focused on the

new pleading standard, contending that it applied here because she petitioned five

months after the amendment’s effective date. Relying on the new standard, the

city insisted the court must dismiss Brinkman’s petition for two reasons. One, she

did not allege with particularity the location of the accident. Two, she did not state

that the negligence law was clearly established at the time of the alleged violation.

Brinkman resisted the motion to dismiss, noting that the accident occurred

more than one year before the statute’s enactment and alleging the new standard

did not apply retroactively. See Iowa Code § 4.5. She also argued that her petition

did plead clearly established law. On the same day, Brinkman filed an amended

petition, adding a more specific address on Maple Street where the crash occurred.

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A few days later, Brinkman moved to again amend her petition—this time to add

H and H Plumbing Inc. as a defendant.

About a month later, the city moved to dismiss Brinkman’s second amended

petition. It argued that section 670.4A(3) did not allow a party to amend its petition

to cure defects; instead the provision required dismissal of the original petition with

prejudice. The city also argued the second amended petition “independently”

breached section 670.4A(3) because it still did not state that the law allegedly

violated by the city was “clearly established.”

After holding a hearing on the city’s motion, the district court denied the

motion to dismiss. To begin, the court rejected Brinkman’s retroactivity argument.

In deciding that section 670.4A(3) did apply, the court found the “event of legal

consequence” was the filing of the petition and not the date of Brinkman’s alleged

injuries. See Hrbek v. State, 958 N.W.2d 779, 783 (Iowa 2021). The court then

provided Brinkman ten days—under the “pleading over” timeframe in Iowa Rule of

Civil Procedure 1.444—to address the heightened pleading requirements in

section 670.4A(3).

Both parties responded to the ruling. The city moved to enlarge or amend

under Iowa Rule of Civil Procedure 1.904(2), insisting dismissal with prejudice was

the only remedy to Brinkman’s defective petition. For her part, Brinkman recast

her petition to allege: “The law of negligence in Iowa was clearly established at

the time of the alleged violation.” (Emphasis in original.) The court denied the

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city’s motion to enlarge or amend. The city appealed. And it successfully sought

to stay the trial proceedings pending appeal.2

We review the court’s ruling on the city’s motion to dismiss for the correction

of legal error. See Benskin, Inc. v. West Bank, 952 N.W.2d 292, 298 (Iowa 2020).

We accept as true the petition’s well-pleaded factual allegations, but not its legal

conclusions. Id.

In its appellant’s brief, the city points to one alleged deficiency in Brinkman’s

pleading: “The Second Amended Petition did not plead that the law was clearly

established.” It contends that she was aware of this pleading requirement from the

city’s motion to dismiss and the discussion at the hearing—yet did not amend her

petition to meet the heightened standard. Without citing any authority, the city

argues that a claim that the law is clearly established “must be accompanied by

reference to authority.” Finally, the city relies on Victoriano for the proposition that

the district court’s only options were to find that the petition complied with section

670.4A(3) or dismiss with prejudice. 984 N.W.2d at 182.

In her appellee’s brief, Brinkman insists that Victoriano provides no authority

for the city’s position. Rather, she reads Victoriano as allowing amended pleadings

like those she filed in the district court. She also argues that she pled clearly

established law in her original petition. She echoes the district court’s sentiment

that section 670.4A(3) was not intended as a “trap for the unwary.”

But Brinkman does not return to her retroactivity argument. Yet that ground

is the most logical resolution of this appeal. See King v. State, 818 N.W.2d 1, 12

2 Brinkman resisted the stay, arguing that the city’s appeal was not from a final

order and should be treated as interlocutory.

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(Iowa 2012) (“Of course, we may choose to consider only grounds for affirmance

raised in the appellee’s brief, but we are not required to do so, so long as the

ground was raised below.”).

A timeline helps explain our decision to consider an argument not

addressed by Brinkman on appeal. About a month after the parties filed their final

briefs, the Iowa Supreme Court decided Nahas, addressing the retroactivity of the

heightened pleading requirement in section 670.4A(3). 991 N.W.2d at 779−80.

That decision confirmed the district court’s holding on the first and second

requirements—particularity and plausibility. Because those requirements related

to the drafting and framing of the petition, they applied to petitions filed after its

enactment, even if the alleged violation happened before July 2021. Id. at 780.

“The new law thus attached new legal consequences (dismissal) to conduct (the

drafting and framing of the petition) that occurred after the effective date of the

statute.” Id. But Nahas contradicted the district court’s retroactivity ruling on the

third requirement—that the petition must state that “the law was clearly established

at the time of the alleged violation.” Id.3 The court described why the relevant

event for that requirement was the date of the alleged negligence:

With respect to this provision, the relevant event to which a new legal

consequence would attach is not the drafting and framing of the

petition. Instead, it is the existence or nonexistence of a historical

social fact—whether the law was “clearly established at the time of

the alleged violation.” The “clearly established” standard is thus

inherently backward-looking. In this case, that historical social fact

was determined at the time of the alleged violations, which were all

prior to the enactment of this statutory provision. Further, whether

the law was clearly established is inextricably intertwined with the

new qualified immunity defense and only relevant to this case to the

3 The court applied only the particularity and plausibility aspects of section

670.4A(3)’s heightened pleading standard to Nahas’s petition. Id. at 782−84.

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extent the new qualified immunity defense is operative in this case,

and we already have concluded that qualified immunity is not

operative in this case because it would be an impermissible

retrospective application of the statute. We thus conclude that

application of this pleading standard to this case would in fact be a

retrospective application of this particular statutory provision.

Because the legislature did not expressly make this statutory

provision retrospective, it cannot be applied in this case.

Id. (internal citation omitted); see also Carver-Kimm v. Reynolds, 992 N.W.2d 591,

597 (Iowa 2023).

The city’s only claim is that Brinkman’s second amended petition did not

allege that the law was clearly established at the time of the alleged violation.

Whether that third requirement in section 670.4A(3) should have been applied

retroactively was fully examined in the district court. After the parties filed their

briefs in this appeal, the supreme court answered that question. We know now

that the “clearly established” pleading requirement does not apply if the alleged

violation predated the statute’s enactment. So we affirm the ruling denying the

city’s motion to dismiss—but do so because Brinkman was not required to meet

that pleading requirement. We must affirm when the record contains any proper

basis for the district court’s ruling, even though it is not the one the district court

relied on. See Gen. Motors Acceptance Corp. v. Keil, 176 N.W.2d 837, 842 (Iowa

1970) (“Many a learned court is occasionally right for the wrong reason . . . .”); see

also King, 818 N.W.2d at 12 (“It would be an abnegation of our responsibility not

to reach a legal question about the sufficiency of the plaintiffs’ pleadings that was

fully developed and decided by the district court.”).

AFFIRMED.