IN THE SUPREME COURT OF IOWA

No. 19–1066 

Submitted December 15, 2020—Filed March 19, 2021 

ROSALINDA VALLES, Individually and on Behalf of F.L., Her Minor 

Child, 

Appellant, 

vs. 

ANDREW MUETING, JOSEPH LIEWER, NORTHWEST IOWA 

EMERGENCY PHYSICIANS, P.C., AMY WINGERT, and KELLY RYDER,

Appellees. 

Appeal from the Iowa District Court for Woodbury County, Jeffrey L. 

Poulson, Judge. 

The mother of an injured child appeals summary judgment rulings 

dismissing her medical malpractice negligence action against two 

physicians and barring the recovery of certain damages as well as various 

court rulings during trial in which the jury rendered a verdict in favor of 

other defendants. APPEAL DISMISSED.

Christensen, C.J., delivered the opinion of the court, in which 

Waterman, Mansfield, McDonald, and McDermott, JJ., joined. Appel, J., 

filed a dissenting opinion. Oxley, J., took no part in the consideration or 

decision of the case. 

Jim Leventhal, Bruce L. Braley (argued), Brian N. Aleinikoff and 

Benjamin I. Sachs of Leventhal Puga Braley, P.C., Denver, Colorado, for 

appellant. 
2 

Nancy J. Penner (argued) of Shuttleworth & Ingersoll, Cedar Rapids; 

John C. Gray and Jeff W. Wright of Heidman Law Firm, L.L.P., Sioux City; 

Kevin J. Kuhn of Wheeler Trigg O’Donnell, LLP, Denver, Colorado; and 

Christine L. Conover and Carrie L. Thompson of Simmons, Perrine, 

Moyer & Bergman, PLC, Cedar Rapids, for appellees Mueting, Liewer, and 

Northwest Iowa Emergency Physicians, P.C. 

William R. Settles (argued), Patrick G. Vipond, and Sarah M. 

Dempsey of Lamson Dugan & Murray LLP, Omaha, Nebraska, for 

appellees Wingert and Ryder. 
3 

CHRISTENSEN, Chief Justice.

A mother whose son developed severe, disabling injuries from 

bacterial meningitis brought an action for medical negligence against the 

physicians who treated her son and their employers. Various defendants 

entered settlement agreements with the mother and a few others were 

dismissed on summary judgment prior to trial. Two physicians and an 

employer of one of those physicians went to trial. A jury issued a verdict 

in their favor, finding the remaining physicians were not negligent. 

The mother appealed and presents several issues on appeal. In 

addition to contesting these issues on the merits, the defendants maintain 

the appeal is untimely and should be dismissed under Iowa Rule of 

Appellate Procedure 6.101(1)(b) because the mother failed to timely file her 

notice of appeal. Upon our review, we conclude the appeal is untimely. 

Therefore, we lack jurisdiction to consider the appeal and must dismiss it. 

I. Background Facts and Proceedings. 

On April 3, 2015, Rosalinda Valles took her eleven-year-old son, 

F.L., to the emergency room at Mercy Medical Center-Sioux City (Mercy) 

because he had a fever, cough, and chills. F.L. returned to the emergency 

room two days later, on April 5, where he presented with similar 

complaints. By this time, the results of F.L.’s April 3 nasal swab were 

available and showed F.L. was positive for Influenza B. F.L. was admitted 

to the hospital for further observation, and he remained hospitalized in 

this unit until his condition deteriorated on April 8. 

On April 8, F.L. became unresponsive to verbal stimuli and was 

transferred to the intensive care unit, where a physician performed a 

lumbar puncture. When F.L.’s lumbar puncture revealed an “elevated 

white count and decreased glucose concentration, [and] presence of 

Bandemia was indicated at 49%,” F.L. was transported by airlift at 
4 

9:40 a.m. to the pediatric intensive care unit at the Children’s Hospital 

and Medical Center in Omaha, Nebraska. F.L. was admitted with 

“meningitis/bacteremia.” F.L. continues to suffer severe and debilitating 

injuries and will for the remainder of his life. 

On January 28, 2016, Valles, individually and on behalf of her minor 

son, F.L., filed this lawsuit. Valles amended her petition a number of 

times. In the final petition, Valles sued Mercy and the following physicians 

for medical negligence and parental loss of consortium: Jaime Dodge, Leah 

Johnson, Joseph Liewer, Thomas Morgan, Andrew Mueting, Jesse 

Nieuwenhuis, Rex Rundquist, Kelly Ryder, Said Hasib Sana, Aruntha 

Swampillai, and Amy Wingert. She also asserted direct and vicarious 

liability claims against Mercy; Northwest Iowa Emergency Physicians, 

P.C.; Siouxland Medical Education Foundation; and Prairie Pediatrics & 

Adolescent Clinic, P.C., doing business as Prairie Pediatrics, P.C. Between 

the filing of this lawsuit on January 28 and the commencement of trial on 

October 30, 2018, there were numerous motions, pretrial hearings, 

amended petitions, and settlements. The only remaining claims by the 

time of trial were those against Dr. Liewer, Dr. Mueting, and Northwest 

Iowa Emergency Physicians, P.C. (Defendants).1

The jury trial commenced on October 30 and spanned several weeks. 

On November 21, the jury returned a verdict in favor of Defendants, finding 

they were not negligent. Since then, Valles has filed various motions, 

dismissals, requests, and appeals. We discuss those relevant to this 

appeal. 

After trial, Valles filed a motion to extend the time for posttrial 

filings, which the district court granted on December 6 to extend the 

 

1Northwest Iowa Emergency Physicians, P.C. is Dr. Liewer’s employer. 
5 

deadlines for filing bills of exceptions and posttrial motions until 

December 21. On December 20, Valles filed a motion for entry of order 

nunc pro tunc asking the district court to amend its November 21 order of 

judgment to identify specifically the defendants who were exonerated by 

the jury as opposed to settling defendants who were also in the case 

caption. On January 25, 2019, the district court entered an order 

amending the judgment to make this clarification. 

On December 20, 2018, Valles also filed her first notice of appeal in 

our court 

from the order and judgment entered in this case on the 21st

day of November, 2018, from the “Enlarged Finding on 

Plaintiff’s Motion for Directed Verdict on Comparative 

Negligence of Mercy Nurses” which was later filed in this case 

on the 5th day of December, 2018, and from all adverse rulings 

and orders inhering therein. 

Valles’s notice explained that she did 

not believe that this case is ripe for an appeal because 

stipulations and orders of dismissal have not yet been entered 

with respect to several of the settling defendants . . . . 

Therefore, the order and judgment entered on the 21st day of 

November, 2018, was not actually dispositive of the entire 

case. In an abundance of caution, however, Plaintiff files this 

protective notice of appeal. 

(Emphasis added.) 

Before we entered any rulings on Valles’s first notice of appeal, 

Valles filed a bill of exceptions in the district court on December 21, which 

Defendants resisted. The district court issued its order denying this bill 

on January 25, 2019, explaining it no longer possessed jurisdiction to 

address Valles’s request because Valles had filed her notice of appeal the 

day before filing her bill of exceptions. 

We entered an order on February 5, requiring Valles to “file a 

statement concerning whether this court has jurisdiction” to hear that 
6 

appeal and welcoming responses from Defendants. In response, Valles 

asked us to dismiss that appeal without prejudice and stated it “should 

not be considered an application for interlocutory review.” Defendants did 

not resist dismissal of the appeal, but they maintained there was no 

authority for dismissal without prejudice and “reserve[d] all argument and 

positions in any subsequent appeal . . . , including as to its timeliness.” 

On March 14, we issued an order treating Valles’s first notice of appeal as 

an application for interlocutory appeal, which we denied. Procedendo 

issued on April 10. 

On April 15, Valles filed a dismissal of settling defendant Mercy in 

district court. On April 30, she dismissed the remaining settling 

defendants. On May 28, Valles filed a motion requesting an order entering 

final judgment, noting the district court had entered judgment in favor of 

Dr. Liewer, Dr. Mueting, and Northwest Iowa Emergency Physicians, P.C., 

and all other defendants had been otherwise dismissed from the case. The 

district court entered Valles’s proposed order the next day. Valles filed her 

second notice of appeal on June 24, and we retained the appeal. The only 

defendants who are parties to this appeal are the three defendants who 

went to trial, Dr. Liewer, Dr. Mueting, and Northwest Iowa Emergency 

Physicians, P.C., and two defendants who were dismissed by summary 

judgment prior to trial, Dr. Ryder and Dr. Wingert. 

II. Jurisdiction. 

We must deal with a threshold matter before addressing any of 

Valles’s claims on appeal, as all defendants on appeal contend Valles’s 

appeal is untimely. If they are correct, we lack jurisdiction to consider 

Valles’s appeal. See Milks v. Iowa Oto-Head & Neck Specialist, P.C., 

519 N.W.2d 801, 803 (Iowa 1994) (“The timeliness of a notice of appeal is 

mandatory and jurisdictional . . . .”). “[W]ant of jurisdiction of the subject 
7 

matter may be taken advantage of at any stage of the proceedings” and 

“need not be pled.” Lloyd v. State, 251 N.W.2d 551, 556 (Iowa 1977). 

All defendants on appeal maintain we have no jurisdiction to 

consider Valles’s appeal of the district court’s summary judgment rulings 

pertaining to them and challenges to the district court’s decisions during 

trial because the appeal is untimely. They contend the district court’s 

November 21, 2018 judgment in favor of Defendants following the jury’s 

November 21 verdict was the final, appealable order pertaining to them, 

and Valles failed to file a proper notice of appeal within thirty days of that 

judgment. Alternatively, they contend that Valles’s April 30, 2019, 

voluntary dismissal of the remaining settling defendants triggered the 

thirty-day appeal deadline because it eliminated the only remaining 

defendants from the case. Again, they contend that Valles failed to file a 

timely notice of appeal after April 30. 

Under our appellate rules of procedure, “[a] notice of appeal must be 

filed within 30 days after the filing of the final order or judgment.” Iowa R. 

App. P. 6.101(1)(b). 

A final judgment or decision is one that finally 

adjudicates the rights of the parties. It must put it beyond the 

power of the court which made it to place the parties in their 

original position. A ruling or order is interlocutory if it is not 

finally decisive of the case. 

In re M.W., 894 N.W.2d 526, 532 (Iowa 2017) (quoting Johnson v. Iowa 

State Highway Comm’n, 257 Iowa 810, 812, 134 N.W.2d 916, 918 (1965)). 

In cases like this involving partial determinations made by a district court, 

rule 6.101(1)(d) provides the following additional means of appeal: 

A final order dismissing some, but not all, of the parties or 

disposing of some, but not all, of the issues in an action may 

be appealed within the time for appealing from the judgment 

that finally disposes of all remaining parties and issues to an 

action, even if the parties’ interests or the issues are severable. 
8 

Iowa R. App. P. 6.101(1)(d). 

This rule promotes the “long followed . . . general policy against 

piecemeal appeals.” In re T.R., 705 N.W.2d 6, 10 (Iowa 2005); cf. Ahls v. 

Sherwood/Div. of Harsco Corp., 473 N.W.2d 619, 623 (Iowa 1991) 

(“Recognition of finality here, moreover, will not offend our policy against 

piecemeal appeals because there are no remaining issues to be tried or 

appealed.”). Here, the district court’s summary judgment rulings in favor 

of Dr. Ryder and Dr. Wingert and its entry of judgment in the remaining 

Defendants’ favor following trial only disposed of some, but not all, of the 

issues because other defendants remained in the action pending probate 

court approval of their proposed settlements with Valles. The issues 

pertaining to the defendants in this appeal are severable from the interests 

of the settling defendants, so Valles had the option to pursue an 

interlocutory appeal or wait until the final disposition of the case with 

respect to all issues and parties. See Est. of Countryman v. Farmers Coop. 

Ass’n, 679 N.W.2d 598, 601 (Iowa 2004). Consequently, Valles’s first 

notice of appeal following the November 21, 2018 entry of judgment was 

an interlocutory appeal so long as other parties remained in the case. See 

id. at 602 (“In this case, the key event [in determining finality] is the date 

the last remaining claim against a party was dismissed.”); IBP, Inc. v. AlGharib, 604 N.W.2d 621, 627 (Iowa 2000) (“[A] ruling is interlocutory if it 

is not finally decisive of the case.” (quoting Recker v. Gustafson, 

271 N.W.2d 738, 739 (Iowa 1978))). 

After we denied Valles’s application for interlocutory appeal from the 

November 21 judgment, Valles filed a dismissal of settling defendant Mercy 

on April 15, 2019, and a dismissal of the remaining settling defendants on 

April 30. Then, on May 28, Valles filed a motion in district court requesting 

an order entering final judgment, noting the district court had entered 
9 

judgment in favor of Defendants and all other defendants had been 

dismissed from the case. The district court entered Valles’s proposed order 

the next day, May 29, and Valles filed her notice of appeal on June 24—

fifty-five days after she dismissed the final settling defendants but within 

thirty days of the May 29 district court order. Ultimately, the issue of 

whether the April 30 dismissal or May 29 order constitutes the dispositive 

date of finality for appeal purposes hinges on whether the April 30 

dismissal was self-executing or whether Valles needed court approval to 

dismiss the remaining parties. Est. of Countryman, 679 N.W.2d at 601. 

Under rule 1.943 of our rules of civil procedure, 

[a] party may, without order of court, dismiss that party’s own 

petition, counterclaim, cross-claim, cross-petition or petition 

of intervention, at any time up until ten days before the trial 

is scheduled to begin. 

Iowa R. Civ. P. 1.943. There was no trial date set for the remaining parties, 

so Valles had the absolute right to dismiss the settling defendants when 

she did without court approval. Thus, her April 30 dismissal was selfexecuting and marked the date of finality for appeal purposes. 

Nothing remained pending in this case after Valles dismissed the 

last of the remaining defendants on April 30. Yet, Valles waited until 

June 24—fifty-five days—to file her notice of appeal. Because Valles failed 

to file her notice of appeal within thirty days of the resolution of the last 

remaining issues before the district court, her appeal is untimely. See 

Robinson v. Safeway Ins., No. 1–09–0361, 2011 WL 9673430, at *5 

(Ill. Ct. App. Dec. 2, 2011) (“[I]t is well established that when a plaintiff 

voluntarily dismisses the remaining counts of a complaint, all previously 

entered orders disposing of other counts in that complaint become 

immediately final and appealable.”); Denham v. City of New Carlisle, 

716 N.E.2d 184, 187 (Ohio 1999) (“[W]e hold that a trial court’s decision 
10 

granting summary judgment based on immunity for one of several 

defendants in a civil action becomes a final appealable order when the 

plaintiff voluntarily dismisses the remaining parties to the suit pursuant 

to [the rule governing voluntary dismissal of the remaining parties to the 

suit].”); 15A Charles Alan Wright et al., Federal Practice and Procedure 

§ 3914, at 487–88 (2d ed. 1991) (discussing the concept of cumulative 

finality); cf. Christ’s Legacy Church v. Trinity Grp. Architects, Inc., 

417 P.3d 1223, 1226 (Okla. Civ. App. 2018) (“Indeed, if some claims (or 

parties) are not adjudicated in an interlocutory, partial summary judgment 

ruling, a voluntary dismissal of the remaining claims (or parties) is 

sufficient to render the partial summary judgment ruling final and 

reviewable, and the filing of the dismissal triggers the commencement of 

appeal time.”). Valles cannot rely on her May 28 motion requesting the 

district court enter a superfluous order of final judgment dismissing 

defendants who had already been dismissed to sidestep our appellate 

deadline. 

The dissent argues that when Valles filed her April 30 dismissal of 

the remaining defendants under rule 1.943, it was not self-executing 

because it was not filed “at any time up until ten days before the trial is 

scheduled to begin.” We do not believe this reading of rule 1.943 is 

plausible. A trial had occurred, but it did not involve these defendants. 

Thus, the dismissal was filed “at any time up until ten days before the trial 

is scheduled to begin” as to these defendants. Notably, Valles herself did 

not believe she needed court permission to dismiss these defendants. 

What she filed on April 30 was a unilateral “Dismiss with Prejudice” that 

did not ask for court approval. For the aforementioned reasons, we lack 

the jurisdiction to consider Valles’s untimely appeal and affirm the 

judgment of the district court. 
11 

III. Conclusion. 

For the foregoing reasons, we dismiss this appeal. 

APPEAL DISMISSED. 

Mansfield, Waterman, McDonald, and McDermott, JJ., join this 

opinion. Appel, J., files a dissenting opinion. Oxley, J., takes no part. 
12 

#19–1066, Valles v. Mueting

APPEL, Justice (dissenting). 

I respectfully dissent. In my view, the majority misinterprets the 

text of the relevant rule, fails to recognize its underlying purpose, and 

comes up with unpersuasive policy reasons to rewrite the text and 

reformulate the underlying policy. 

The live wire jurisdictional issue in this case is whether the filing of 

the voluntary motions to dismiss on April 30, 2019, were self-executing or 

whether they required judicial approval before becoming final. If the 

voluntary dismissals were self-executing, the plaintiff’s appeal on June 28 

fifty-five days later would be time-barred. If, however, the voluntary 

dismissals required leave of court, the appeal would be timely. 

At early common law, a plaintiff, in some instances, could take a 

nonsuit even after a verdict if the plaintiff “did not like his damages.” Note, 

The Right of a Plaintiff to Take a Voluntary Nonsuit or to Dismiss His Action 

Without Prejudice, 37 Va. L. Rev. 969, 970 (1951) [hereinafter Lipkin, 

Voluntary Nonsuit]. This regime provided the plaintiff with an advantage 

as the plaintiff could continue suing until he was satisfied with the damage 

recovery. Id. Later, the common law limited voluntary dismissals to the 

period prior to a verdict. Id. Modern statutes and rules have been put in 

place to regulate a plaintiff’s ability to engage in voluntary dismissals of 

lawsuits. Id. 

The relevant rule is Iowa Rule of Civil Procedure 1.943. That rule 

provides, in relevant part: “[a] party may, without order of court, dismiss 

that party’s own petition . . . at any time up until ten days before the trial 

is scheduled to begin. Thereafter a party may dismiss an action . . . only 

by [leave] of the court.” Id. (emphasis added). 
13 

A trial in this matter occurred with a jury verdict on 

November 21, 2018. Prior to trial, however, the plaintiffs had reached a 

settlement with some defendants that was subject to approval in probate 

court. On December 20, the plaintiffs filed a motion with the district court 

requesting that an order be entered declaring that the jury’s verdict was 

only a final judgment as to the nonsettling defendants but not a judgment 

in favor of the settling defendants. On January 24, 2019, the nonsettling 

defendants responded that they did not object to the entry of an order 

making the clarification. On January 25, the district court entered the 

requested order making clear that the jury’s verdict was not a final 

judgment against the settling defendants. 

Ultimately, Valles was able to complete the settlements. On 

April 15, Valles filed a motion to dismiss Mercy Health Services–Iowa, 

Corporation. On April 30, Valles dismissed the remaining parties. 

On May 28, Valles asked the district court to enter a final order and 

judgment in the case. On May 29, the district court complied. On 

June 24, a notice of appeal was filed. 

The critical issue in this case is whether the voluntary dismissals 

filed on April 15 and April 30 were self-executing. In other words, did the 

dismissals take immediate effect and constitute a final judgment upon 

their filing with the clerk of court without the need for judicial approval. If 

they were self-executing, the plaintiff’s notice of appeal on June 24 was 

outside the thirty-day window, and this court lacks jurisdiction to hear the 

cause. If the voluntary dismissals were not self-executing, and judicial 

action was required before they became effective, the June 24 notice of 

appeal would be timely. 

The general rule is clear enough. A voluntary dismissal filed more 

than ten days before trial is self-executing and becomes final on the day it 
14 

is filed. Iowa R. Civ. P. 1.943. A voluntary dismissal filed within “ten days 

before the trial is scheduled to begin” is not self-executing and requires 

approval by the court. Id. The rule goes on to state that “[t]hereafter,” 

leave of court is required for voluntary dismissals. Id.

The language “up until ten days before the trial is scheduled,” when 

coupled with the “thereafter” clause, establishes a finish line, not a 

goalpost. Were the voluntary dismissals filed within the rule’s deadline in 

this case prior to the middle of November 2018, they would be selfexecuting final dismissals and not require further court action. 

The “up until ten days” language creates a window of opportunity 

for a plaintiff to voluntarily dismiss the claim without prejudice. The 

window opens with the filing of the complaint, and it closes ten days prior 

to a scheduled trial. Under the rule, the window for voluntary dismissals 

does not open again. But under the majority view, there is the opening of 

a second window not contained in the rule. 

Aside from the lack of textual support for the second window, it 

makes sense for the district court to retain jurisdiction over the matter. 

Historically, the purpose of regulating nonsuits was to prevent plaintiffs 

from engaging in late dismissals. Lipkin, Voluntary Nonsuit, 37 Va. L. Rev. 

at 970. The modern regulations were thus tailored to prevent the result 

advocated by the majority, namely, unregulated voluntary dismissal by the 

plaintiff after trial. Id. In addition, one purpose of maintaining judicial 

control over late filed dismissals is to allow the district court to consider 

whether to insist that dismissal is made with prejudice or to assess costs 

and fees against a party for engaging in unnecessary and prolonged 

litigation. See Manshack v. Sw. Elec. Power Co., 915 F.2d 172, 174 

(5th Cir. 1990) (construing parallel provisions of Federal Rule of Civil 

Procedure 41(a)(2)); see also 9 Charles A. Wright & Arthur R. Miller, 
15 

Federal Practice and Procedure § 2364, at 556 (4th ed. 2020) (stating the 

purpose of rule 41(a)(2) is “to prevent voluntary dismissals which unfairly 

affect the other side, and to permit the imposition of curative conditions”) 

(quoting Alamance Indus., Inc. v. Filene’s, 291 F.2d 142, 146 

(1st Cir. 1961)).

The majority seeks to enlist in support of its position the doctrine of 

pragmatic finality. But the leading pragmatic finality case cuts dead 

against the majority position. As will be seen, the doctrine of pragmatic 

finality is an ad hoc exception to the ordinary finality rule designed to 

encourage consideration of appeals on the merits. It cannot be used to 

defeat Iowa Rule of Civil Procedure 1.943 or our ordinary approach to 

finality. 

The seminal case of pragmatic finality cited by the majority is Ahls 

v. Sherwood/Division of Harsco Corp., 473 N.W.2d 619 (Iowa 1991). In 

Ahls, one party was dismissed early in the litigation for want of personal 

jurisdiction on December 23, 1987. Id. at 620–21. The remaining parties 

then settled on October 3, 1989, the day set for trial. Id. at 621. On the 

same day, the district court entered an order which noted the settlements 

and assessed a late penalty. Id. Dismissal documents implementing the 

settlement were filed on November 15. Id. On November 27, a party 

sought to appeal the district court’s December 28 dismissal order. Id. at 

621, 624. 

The fighting issues in Ahls was whether the litigation were twofold. 

First, was the October 3 order acknowledging that the case had been 

settled a final order. Id. at 621–22. Second, were the dismissal documents 

filed by the parties on November 15 a final order for purposes of appeal. 

Id. at 622–23. 
16 

The Ahls court dispatched the first claim quickly, noting that 

although the district court’s order announced the settlement, it did not 

amount to a final order of the court. Id. at 622. The court then turned to 

whether the filing of the November 15 dismissals by the parties was a final, 

and therefore appealable, order. Id.

The Ahls court said no. Id. The Ahls court noted that that the filing 

of the voluntary dismissals “was not an action by the court at all.” Id. 

Quoting a federal district court case, the Ahls court declared that “[t]he 

distinction is obvious between a final decree and a stipulation upon which 

such a decree may be entered.” Id. (alteration in original) (quoting Roemer 

v. Neumann, 26 F. 332, 334 (C.C.S.D.N.Y. 1886)). The court went on to 

emphasize that “while [the] case was fully concluded, there was no formal 

order which may be considered a final order for purposes of appeal.” Id. 

The pronouncement in Ahls is completely consistent with the position of 

the plaintiffs in this case. 

But that was not the end of the Ahls matter. The Ahls court then 

considered the doctrine of pragmatic finality that had been applied in 

federal courts. Id. at 623. Quoting Unioil, Inc. v. E.F. Hutton & Co., 

809 F.2d 548, 554 (9th Cir. 1986), the Ahls court noted that a court “may 

treat an interlocutory order as a final order when that portion of the case 

that remained in the district court has subsequently been terminated.” 

Ahls, 473 N.W.2d at 623. 

The Ahls court noted that “there are problems inherent in 

recognizing ad hoc exceptions to our finality rule.” Id. The Ahls court 

quoted a dissent in a federal case which stated: 

[T]he newly created exception to finality replaces with large 

elements of uncertain administration the previously certain 

and efficient rule of finality . . . The need for clear and easily 

administered rules as to the threshold adjective issue of 
17 

reviewability overrides any values of flexible case-by-case 

administration. 

Id. (quoting Newpark Shipbuilding & Repair, Inc., v. Roundtree, 

698 F.2d 743, 757 (5th Cir. 1983) (Tate, J., dissenting)). 

Thus, the Ahls court was not overturning the general rule that a 

court order was required for a final order. Instead, it permitted an ad hoc 

exception to permit appeal of an interlocutory order in the interest of 

fairness to the parties. In this case, the majority turns the shield of the 

ad hoc exception designed to promote fairness to the parties and permit 

resolution of a case on the merits into a sword that eviscerates the ordinary 

rule. 

The majority then cites a couple of authorities for the proposition 

that when a voluntary dismissal occurs for all remaining parties, prior 

interlocutory appeals become final. See Robinson v. Safeway Ins., 

No. 1–09–0361, 2011 WL 9673430, at *5 (Ill. App. Ct. Dec. 2, 2011); 

Denham v. City of New Carlisle, 716 N.E.2d 184, 187 (Ohio 1999); Christ’s 

Legacy Church v. Trinity Grp. Architects, Inc., 417 P.3d 1223, 1226 (Okla. 

Civ. App. 2018). It is blackletter law that once voluntary dismissals are 

final, the prior interlocutory orders in a case also become final. But the 

majority has not cited—and I have not found any—passage in these cases 

that considers the question of when a voluntary settlement is selfexecuting or when it requires judicial approval under a rule like Iowa Rule 

of Civil Procedure 1.943. These cases are the proverbial boxed canyon that 

lead nowhere on the issue at hand. 

The majority drives to its result by airbrushing language out of 

rule 1.943. The majority provides a partial block quote of the rule: 

[a] party may, without order of court, dismiss that party’s own 

petition, counterclaim, cross-claim, cross-petition or petition 

of intervention, at any time up until ten days before the trial 

is scheduled to begin. 
18 

The majority, however, does not present the relevant part of the next 

important sentence of the rule. Here is the text of the rule with the omitted 

passage restored: 

[a] party may, without order of court, dismiss that party’s own 

petition, counterclaim, cross-claim, cross-petition or petition 

of intervention, at any time up until ten days before the trial 

is scheduled to begin. Thereafter a party may dismiss an 

action or that party’s claim therein only by consent of the court 

which may impose such terms or conditions as it deems proper. 

Iowa R. Civ. P. 1.943 (emphasis added). The plaintiff’s dismissal occurred 

after the expiration of ten days prior to a “scheduled” trial. And the 

plaintiff’s dismissal occurred “thereafter” the expiration of the ten-day 

period prior to a “scheduled” trial. If we were to follow the text of the 

“scheduled” clause and the “thereafter” clause, court approval would be 

required for the voluntary dismissals at issue here. 

The majority attempts to make hay out of the fact that the April 30 

dismissal did not expressly seek court approval. The majority chooses to 

read the plaintiff’s mind based on what was not said, ordinarily a dubious 

enterprise. In any event, I see nothing in rule 1.943 that makes the 

requirement of the rule dependent on a party’s explicit ask. 

And, like its partial presentation of the text of the rule, the majority 

gives a partial history. After the district court took no action on the 

April 30 voluntary dismissal, on May 28, the plaintiffs filed a motion 

requesting that the district court take appropriate action under rule 1.943. 

And the district court entered the requested order on May 29. If it was 

important to interpret what the plaintiff’s omission meant on April 30, it 

should be informed by what was said in the later filing. In my view, 

however, the subjective inquiry adds nothing to the resolution of this case 

and in future cases will hopefully only be regarded as an odd observation 
19 

that does not establish a precedent for subjective interpretation of our 

rules of procedure. 

Because of the text of Iowa Rule of Civil Procedure 1.943, the 

applicable underlying policies, and the applicable case law, I would hold 

that this court has jurisdiction to hear the appeal.