Estate of Kimberly Steenhoek, by its Administrator, Jessica Clark, Jessica Clark, Individually, and Robert Cook, Individually v. Archana Verma, M.D. and Iowa Digestive Disease Center, P.C.
CourtCourt of Appeals of Iowa
Date FiledOctober 7, 2026
Docket24-1587
StatusPublished
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Full Opinion
IN THE COURT OF APPEALS OF IOWA
_______________
No. 24-1587
Filed October 7, 2026
_______________
Estate of Kimberly Steenhoek, by its Administrator, Jessica Clark,
Jessica Clark, Individually, and Robert Cook, Individually,
Plaintiffs–Appellants,
v.
Archana Verma, M.D. and Iowa Digestive Disease Center, P.C.,
Defendants–Appellees.
_______________
Appeal from the Iowa District Court for Polk County,
The Honorable Samantha Gronewald, Judge.
_______________
REVERSED AND REMANDED
_______________
Brian P. Galligan (argued) of Galligan Law, P.C., Clive, and Timm W. Reid
and Justin T. Reid of Reid Law Firm, P.L.L.C., Des Moines,
attorneys for appellants.
Aaron J. Redinbaugh (argued), Connie L. Diekema, Stacie M. Codr, Jeffrey
R. Kappelman, and Peter R. Lapointe of Finley Law Firm, P.C.,
Des Moines, attorneys for appellees.
_______________
Heard at oral argument
by Badding, P.J., and Chicchelly and Langholz, JJ.
Opinion by Langholz, J. Dissent by Badding, P.J.
1
LANGHOLZ, Judge.
Do medical-malpractice defendants waive their right to challenge a
certificate of merit under Iowa Code section 147.140(6) (2022) by waiting
until after the dispositive-motion deadline expires to file their challenge? Our
supreme court has set “the dispositive motion deadline as a bright line for
determining waiver.” Banwart v. Neurosurgery of N. Iowa, P.C., 18 N.W.3d 267,
277 (Iowa 2025). But since setting this “bright-line rule,” the court has had
occasion to apply it only to defendants who filed their motions before the
deadline. Id. at 278; see also Rarick v. Smidt, 36 N.W.3d 1, 7 (Iowa 2026).
Here, the defendants filed their challenge twenty-two days after the
summary-judgment deadline expired. We agree with the plaintiffs that this
deadline was the dispositive-motion deadline for purpose of the bright-line
waiver rule. And because we see no principled basis for giving the rule effect
on only one side of the line, we hold that the defendants waived their right to
challenge the certificate of merit. We thus reverse the district court’s
dismissal and remand for further proceedings.
I. Background Facts and Proceedings
In December 2022, the Estate of Kimberly Steenhoek and her husband
and daughter sued Dr. Archana Verma and Verma’s employer, Iowa
Digestive Disease Center, P.C., alleging that Verma’s negligence in
performing an outpatient endoscopic procedure in September 2021 caused
Steenhoek’s death. Early on, the parties submitted the standard form trial
scheduling and discovery plan proposing a deadline for “[a]ll motions
including summary judgment and except motions in limine” sixty days before
trial. See Iowa Ct. R. 23.5—Form 2, ¶ 10. But in its order setting trial and
approving the plan, the district court modified that deadline to instead
require “[s]ummary judgment motions” to be filed by May 14, 2024—ninety
2
days before trial.1 And on June 5, 2024—twenty-two days after that
deadline—Verma moved to dismiss the suit under Iowa Code
section 147.140(6). Relying mainly on the supreme court’s opinion in Miller
v. Cath. Health Initiatives-Iowa, Corp., 7 N.W.3d 367, 373–77 (Iowa 2024),
which had been decided twelve days before, Verma argued that she was
entitled to dismissal because the Estate’s certificate of merit was neither a
proper affidavit nor signed under penalty of perjury as required by the statute.
She attached the four-page certificate of merit as an exhibit to her motion.
While Verma’s motion was pending, the parties jointly moved to
postpone the scheduled trial because of “the short time period between the
hearing and the date previously set for trial” and the “need to review any
court ruling for the possibility of potential appeal.” The court agreed,
resetting the trial for June 2025 and again setting the deadline for summary-
judgment motions ninety days before the start of that new trial date.
The court granted Verma’s motion and dismissed the case in
September 2024. The court agreed with Verma that the Estate’s certificate
of merit did not substantially comply with section 147.140 because it “was
not signed under oath or penalty of perjury.” The court also rejected the
Estate’s argument that the statute was unconstitutionally vague and thus
void under the Due Process Clause. And it ruled that Verma had not waived
her right to challenge the certificate of merit by filing the motion to dismiss
too late, reasoning that “there is no deadline in Iowa Code section 147.140 by
which a defendant must file a motion to dismiss.” The Estate then appealed.
1
The order also set an even earlier 120-day deadline for summary-judgment
motions with “more than 100 pages” of supporting evidence. As Verma’s motion had only
four pages of supporting evidence, no one argues that this deadline was applicable here.
3
II. The Law Governing Challenges to Certificates of Merit
While this appeal has been pending, the supreme court has continued
to clarify the law governing certificates of merit and challenges to them. 2
See, e.g., Rarick, 36 N.W.3d at 6 (reiterating that there are only two ways to
substantially comply with the statute—providing “(1) an actual affidavit
executed by an expert before a separate person who is authorized to
administer the oath, or (2) the permissible substitute, namely, a document
compliant with section 622.1, which requires the statement that the person
is signing under penalty of perjury” (cleaned up)); Banwart, 18 N.W.3d
at 275–76 (holding that section 147.140 is not unconstitutionally vague). Most
relevant here, the court decided a series of cases considering when a
defendant’s delay in moving to dismiss based on deficient certificates of merit
amounts to waiver of its right to dismissal under section 147.140(6).
First, the court held that a defendant waived its right to dismissal when
it did not raise the certificate-of-merit challenge until a motion for summary
reversal on appeal. See S.K. v. Obstetric & Gynecologic Assocs. of Iowa City &
Coralville, P.C., 13 N.W.3d 546, 569 (Iowa 2024) (Waterman, J., concurring);
see also Banwart, 18 N.W.3d at 277 n.5 (noting that the concurrence in S.K. is
the majority opinion on this issue). The court declined to decide “the precise
point at which a motion challenging a certificate of merit affidavit becomes
untimely.” S.K., 13 N.W.3d at 569. But it had “no trouble saying that it is too
late once the district court issues its final judgment.” Id. In support of this
2
Because of the overlapping issues in other recently decided appeals, both parties
filed supplemental briefs after this case was fully briefed. Without resistance, the Estate
then successfully sought a stay of this case for nearly a year until the supreme court
decided another one of the related appeals. And our court set this case for oral argument
to ensure that both parties had the chance to be heard on the current state of the governing
law on waiver of the section 147.140(6) dismissal right and its application to the facts here.
4
conclusion, the court cited reasoning from out-of-state precedent applying
“a totality-of-the-circumstances test” and from Iowa precedent looking to
“inconsistent litigation conduct” in finding waiver of a right to compel
arbitration. Id. at 571–72. And so, although the case was reversed and
remanded for a new trial on other grounds, the court held that any “renewed
motion” for dismissal “on remand must be denied” as waived by the
defendant. Id. at 573.
The supreme court revisited the issue four months later and decided
to impose a “bright-line rule”—the dispositive-motion deadline—for
deciding whether a defendant’s delay in moving for dismissal amounts to a
waiver. Banwart, 18 N.W.3d at 278. Noting that it had previously recognized
that merely conducting some discovery was not a waiver and that the statute
itself “included no deadline,” the court reasoned that “[u]sing the
dispositive motion deadline as a bright line for determining waiver avoids a
fact-intensive inquiry into how much discovery is too much.” Id. at 277. The
court explained that “defendants may control the timing of their motions for
summary judgment, subject to the district court’s dispositive motion
deadline, without wa[i]ving their rights under section 147.140.” Id. at 278.
And the court instructed that “parties should rely upon this bright line rather
than statements [it] made in S.K.” while noting “that the outcome in S.K. is
consistent with the bright-line rule here.”3 Id. Applying this new rule, the
court held that “the defendants did not waive their statutory right to
dismissal” despite a two-and-a-half-year delay in moving for dismissal
3
The court also distinguished the arbitration-waiver precedent it had previously
cited in S.K., explaining that “[t]he waiver analysis differs” there because “[p]ursuing
discovery is regarded as being inconsistent with demanding arbitration, since discovery is
not generally available in arbitration.” Banwart, 18 N.W.3d at 277 n.6 (cleaned up).
5
because their motion “was filed before the district court’s dispositive motion
deadline.” Id.
Since the supreme court set this bright-line rule, our appellate courts
have repeatedly applied the rule to hold that defendants who moved to
dismiss before the dispositive-motion deadline had not waived their rights
under section 147.140(6)—regardless of how close to the line they came.
See, e.g., Rarick, 36 N.W.3d at 7 (clarifying too that the rule applies to other
“waiver-related arguments,” such as “estoppel, consent, laches, or the
like”); Est. of Schmidt v. Buena Vista Reg’l Med. Ctr., No. 24-1840,
2026 WL 43831, at *2 (Iowa Ct. App. Jan. 7, 2026) (holding that the
defendants did not waive their rights when they filed the month before the
dispositive-motion deadline despite two-year delay); Frank v. Hallman,
No. 24-0998, 2025 WL 2537920, at *1–2 (Iowa Ct. App. Sep. 4, 2025)
(holding that the defendants did not waive their rights when they filed on the
day of the dispositive-motion deadline). But neither the supreme court nor
our court has yet directly held that the bright-line rule means that defendants
waive their rights to dismissal under section 147.140(6) anytime that they file
their motion after the dispositive-motion deadline has passed.
Still, the supreme court has further discussed the application of the
bright-line rule to a motion filed after the dispositive-motion deadline in an
unpublished opinion earlier this year. See Williams v. Hartman, No. 25-0752,
2026 WL 1500898, at *2 (Iowa May 29, 2026) (per curiam). There, a plaintiff
sought to apply the savings statute after voluntarily dismissing her first
malpractice case when the defendant had moved to challenge her certificate
of merit as deficient. See id. Because the defendant’s motion had been filed
after the dispositive-motion deadline, the defendant argued that the
plaintiff’s first suit had not failed “because she could have successfully
6
resisted the motion to dismiss.” Id. The court held that the plaintiff could
still take advantage of the savings statute “[b]ecause none of our cases
suggested a basis to resist the summary judgment motion at the time of her
dismissal,” which had been filed before either Banwart or S.K. had been
decided. Id. But even so, the court did not disagree with the defendant’s
ironic argument that his challenge—filed after the dispositive-motion
deadline—should have been denied as untimely. See id. (“There is some
irony, of course, in [the defendant’s] argument that he should win this second
lawsuit because we now know in hindsight that he should have lost his motion
in the first lawsuit.”). And the court described Banwart as “first
establish[ing] that motions attacking certificates of merit must be made
before the dispositive motion deadline.” Id. While this discussion is neither
controlling authority nor a direct holding, we find it persuasive in
understanding the bright-line rule established by the supreme court. See Iowa
R. App. P. 6.904(2)(a)(2).
So where does this leave us? The supreme court has directed courts to
use “the dispositive motion deadline as a bright line for determining waiver.”
Banwart, 18 N.W.3d at 277. True, the technical holding of the case was
phrased more narrowly. See id. at 278 (“We hold as a matter of law that the
defendants did not waive their statutory right to dismissal under Iowa Code
section 147.140(6) when their motion for summary judgment was filed before
the district court’s dispositive motion deadline.”). But as an “inferior”
court, Iowa Const. art. V, § 1, we cannot ignore the underlying reasoning of
the supreme court when we apply that governing precedent to new facts. See
In re J.C., 877 N.W.2d 447, 456 n.5 (Iowa 2016) (“[C]arefully considered
language of the [U.S.] Supreme Court, even if technically dictum, generally
must be treated as authoritative.” (cleaned up)); State v. Riley,
377 N.W.2d 242, 243 (Iowa Ct. App. 1985) (rejecting argument that supreme
7
court’s broad statement distilling the governing rule “was dictum and does
not bind us”); Beeson v. Phelps, No. 08-1689, 2009 WL 1886070, at *2 (Iowa
Ct. App. July 2, 2009) (“However, dicta or not, we believe the supreme
court’s clear statements of the law are binding on this court.”).
And we see nothing in Banwart—or any of these other cases—even
hinting that the announced rule is merely a safe harbor for defendants with
no corresponding effect on defendants who file after the dispositive-motion
deadline. The court did not suggest that its more amorphous waiver analysis
in S.K. still applies for motions filed after the dispositive motion deadline—
to the contrary, it directed that parties “should rely upon this bright line
rather than statements [it] made in S.K.” Banwart, 18 N.W.3d at 278. And
because the court reaffirmed that “the outcome in S.K. is consistent with the
bright-line rule,” we can infer that waiver is the consequence of filing on the
wrong side of that line. Id. What’s more, dimming one side of the bright line
would undermine the goals of “serv[ing] the interests of judicial economy,”
being “easy to administer,” and “reducing the risk of more litigation” that
the court sought to achieve by setting a “bright-line rule.” Id. (cleaned up).
Like the supreme court, we thus read Banwart to have “established
that motions attacking certificates of merit must be made before the
dispositive motion deadline.” Williams, 2026 WL 1500898, at *2. And under
this bright-line rule, medical-malpractice defendants waive their right to
dismissal under Iowa Code section 147.140(6) when their motion challenging
a deficient certificate of merit is filed after the dispositive-motion deadline.
III. Applying the Governing Law to this Challenge
To apply Banwart’s bright-line rule here, we must first identify the
dispositive-motion deadline. That deadline is a question of law—not fact—
because it was a term of the court’s order setting trial and approving the
8
discovery plan. See Waters v. State, 784 N.W.2d 24, 28 (Iowa 2010). Neither
the court’s order nor the incorporated trial scheduling and discovery plan
uses the precise term “dispositive-motion deadline.” Nor does the term
“dispositive motion” appear in the rules of civil procedure. But the order
unambiguously set the deadline for summary-judgment motions with less
than 100 pages of supporting evidence at ninety days before trial. See id.
(interpreting court order “like any other written instrument”). Motions for
summary judgment are dispositive motions. See Stogdill v. City of Windsor
Heights, 991 N.W.2d 719, 723–24 (Iowa 2023). Indeed, in Banwart, the court
used the terms interchangeably. See, e.g., Banwart, 18 N.W.3d at 278 (“In our
view, defendants may control the timing of their motions for summary
judgment, subject to the district court’s dispositive motion deadline, without
wa[i]ving their rights under section 147.140.”).
True, as Verma notes, a summary-judgment motion is not the only
dispositive motion. See, e.g., Iowa R. Civ. P. 1.421 (authorizing “pre-answer
motion” to dismiss); Iowa R. Civ. P. 1.954 (authorizing motion for “judgment
on the pleadings”); Iowa R. Civ. P. 1.945 (authorizing motion to dismiss for
failing to comply with court orders or the rules of civil procedure and motion
for a directed verdict at the close of a party’s case). And by modifying only
the summary-judgment deadline from the parties’ proposed trial scheduling
and discovery plan, the district court’s sixty-day deadline for other motions
besides summary-judgment motions and motions in limine would govern at
least some of these other less-common dispositive motions, such as a motion
for judgment on the pleadings.4 But it does not follow, as Verma argues, that
4
The deadline did not govern a motion to dismiss under rule 1.421(1)(f ), as the
district court treated this motion. Such motions “must be filed before answer” and
“[o]ther procedural devices are available for disposition of matters after answer.” Johnston
v. Percy Constr., Inc., 258 N.W.2d 366, 370 (Iowa 1977) (cleaned up).
9
this means the later deadline is the relevant dispositive-motion deadline for
determining waiver. Whatever caption Verma put on her motion seeking
dismissal under section 147.140(6), it is properly considered a summary-
judgment motion because it requires consideration of evidence outside the
pleadings—the certificate of merit itself. See Troester v. Sisters of Mercy Health
Corp., 328 N.W.2d 308, 311 (Iowa 1982) (holding that when a motion to
dismiss is “founded on facts that arose after the pleadings had been filed”
and “matters outside the pleadings are relied upon in support of the motion,
the proper procedure is to treat the motion as one for summary judgment”
(cleaned up)); Kirlin v. Monaster, 984 N.W.2d 412, 414 (Iowa 2023) (noting
that district court had denied a motion to dismiss challenging a certificate of
merit “because, at the pleadings stage, it could not consider facts outside the
[plaintiffs’] petition” and then granted a motion for summary judgment after
“having the ability to consider filings outside of the petition”). We thus hold
that where, as here, the court sets a summary-judgment deadline separately
from the deadline for other pre-trial motions, the summary-judgment
deadline is the dispositive-motion deadline that serves as the bright line for
determining waiver of a defendant’s dismissal right under section 147.140(6).
That means Verma’s deadline for challenging the certificates of merit
under section 147.140(6) was May 14, 2024. And she filed her motion twenty-
two days later on June 15, 2024. Because the deadline had expired when she
filed her motion, Verma waived her statutory right to dismissal under
Banwart’s bright-line rule. The district court erred in ruling that Verma had
not waived that right and in granting her motion to dismiss the case.
In arguing otherwise, Verma contends that her motion was still timely
because—after she filed her motion—the court postponed the scheduled
trial and set a new dispositive-motion deadline in early 2025. But the most
10
straightforward way to apply the governing bright-line rule is to consider
whether the deadline had already expired at the time the motion was filed. 5
And at the time Verma filed her motion, the dispositive-motion deadline had
expired. The deadline was only reset because Verma’s motion was filed so
close to the trial date that the court and the parties needed more time to
properly resolve the motion and prepare for trial. And while the Estate
reasonably joined in the joint motion to postpone the trial for that reason, we
cannot say that it conceded that Verma’s motion was timely by doing so.
Indeed, the same day that the parties filed the joint motion, the Estate filed
its resistance to Verma’s motion under section 147.140(6) arguing that it was
“untimely, waived, or estopped” (capitalization removed). Forcing a
plaintiff—or the court—to choose between litigating a late-filed motion
against an impending trial date and making the otherwise-late motion timely
would not serve the interests of justice.
Verma also argues that we cannot apply this bright-line rule based on
the dispositive-motion deadline to determine waiver here because the Estate
failed to preserve error and the district court agreed with Verma that her
motion complied with all court-imposed deadlines. But starting with its
5
After all, even in S.K.—which Banwart described as an outcome “consistent with
the bright-line rule,” 18 N.W.3d at 278—the court found waiver after the dispositive-
motion deadline had expired despite another dispositive-motion deadline soon to be set
with a new trial date on remand. See S.K., 13 N.W.3d at 569–73 (Waterman, J., concurring).
But we do not suggest that a dispositive-motion deadline remains forever fixed at the first
date set by the court. If the court extends the deadline before it expires, the timeliness of
the motion is judged by the new dispositive-motion deadline in effect at the time the
motion under section 147.140(6) was filed. Cf. Carder v. Active Chiropractic, PC,
No. 25-0308, 2026 WL 892564, at *1, *3 (Iowa Ct. App. Apr. 1, 2026) (applying rule to
extended dispositive-motion deadline when the trial was rescheduled about a year before
the filing of the motion—rejecting plaintiff’s “argument that the dispositive motion
deadline remained tethered to the original trial date”).
11
resistance to Verma’s motion and throughout the trial and appellate
proceedings, the Estate has argued that Verma waived her statutory right to
challenge the certificates of merit by “wait[ing] too long” to do so. The
Estate similarly described Verma’s challenge as “untimely.” To be sure, the
Estate did not home in on the dispositive-motion deadline as an argument
supporting its claim of waiver until oral argument before our court. But the
Estate raised the waiver issue that we are deciding, and we can properly
consider this “additional ammunition” to resolve the issue on appeal. JBS
Swift & Co. v. Ochoa, 888 N.W.2d 887, 893 (Iowa 2016). And because the
governing dispositive-motion deadline is a question of law—and the district
court did not modify it before Verma filed her motion—the court’s later
descriptions of the order or parties’ concessions cannot unilaterally change
it or affect our correct legal interpretation of the order. See Waters,
784 N.W.2d at 28 & n.2 (interpreting order as a question of law without
deferring to a later reading of the order that was never modified);
In re Marriage of Gibson, 320 N.W.2d 822, 823 (Iowa 1982) (giving no
deference to court’s interpretation where, as here, the interpreting judge did
not enter the original order); Christensen v. Iowa Dist. Ct., 21 N.W.3d 529, 532
(Iowa 2025) (“Party concessions do not in all cases dictate a court’s
options.”).
We recognize that neither the district court nor the parties had the
benefit of the supreme court precedent we have applied when deciding
whether Verma had waived her dismissal rights under section 147.140(6). See
Williams, 2026 WL 1500898, at *2 (describing the state of the law on the
same day Verma moved to dismiss). And indeed, the position Verma
successfully advocated was a reasonable one on the law as it stood. In three
opinions that Verma cited to the district court, our court had rejected claims
that defendants waived their rights under section 147.140 with reasoning that
12
might be read to suggest there could never be waiver under the statute. See
McHugh v. Smith, 966 N.W.2d 285, 291 (Iowa Ct. App. 2021) (rejecting claim
that the defendant waived statutory deadline for filing certificate by agreeing
to discovery-response extension because “[n]othing in the statutory language
supports” the claim); Butler v. Iyer, No. 21-0796, 2022 WL 1100275, at *5
(Iowa Ct. App. Apr. 13, 2022) (rejecting claim that the defendant waived right
to dismissal by engaging in discovery before the plaintiff’s deadline for filing
the certificate, reasoning that we could not “read a waiver clause into the new
statute that the legislature did not communicate through its drafting”
(cleaned up)); Est. of Butterfield v. Chautauqua Guest Home, Inc., No. 22-0101,
2022 WL 3440703, at *3 (Iowa Ct. App. Aug. 17, 2022) (rejecting claim that
defendant waived right to dismissal by agreeing to discovery plan and
conducting discovery for over a year before moving to dismiss, reasoning that
“[t]he statute sets forth a mandatory course of action with no expiration or
other timeline”), vacated in part on other grounds, 987 N.W.2d 834, 836
(Iowa 2023).
But we must apply the current governing law when resolving this
appeal. See, e.g., Rarick, 36 N.W.3d at 7 (applying Banwart’s bright-line rule
even though it was decided while the appeal was pending); Schmidt,
2026 WL 43831, at *2–3 (reversing district court’s pre-Banwart ruling based
on Banwart’s bright-line rule). And while even Miller had not been decided
by the time Verma’s dispositive-motion deadline expired, “Miller did not
change the law on this issue.” S.K., 13 N.W.3d at 570–71 & n.5 (reasoning, in
a case where the dispositive-motion deadline had expired, the case was tried
to a jury, and the defendant had appealed the adverse verdict—all before
Miller was decided—that the defendant still could have moved for dismissal
for more than four years based just on the statute). So nothing about the
13
timing of the evolution of the governing law alters the proper analysis of
whether Verma waived her dismissal right.
Bottom line, because Verma did not challenge the certificate of merit
until after the dispositive-motion deadline had expired, she waived her right
to dismissal under Iowa Code section 147.140(6). We thus reverse the district
court’s dismissal and remand for further proceedings. And because we
reverse on this ground, we need not address the Estate’s other claims of error.
While Verma cannot renew her certificate-of-merit challenge on remand, she
retains her defenses to the merits of the Estate’s claims—on which we
express no view—and the parties may litigate them through dispositive
motions or trial.
REVERSED AND REMANDED.
Chicchelly, J., concurs; Badding, P.J., dissents.
14
BADDING, Presiding Judge (dissenting).
The overlapping scheduling orders in this case—with two different
dispositive motion deadlines—have made the “bright-line rule” announced
in Banwart v. Neurosurgery of North Iowa not so bright. 18 N.W.3d 267, 277
(Iowa 2025) (setting the “dispositive motion deadline as a bright line for
determining waiver”). While I agree with the majority’s thoughtful
explanation of how the deadline for challenging a certificate of merit has
evolved across our supreme court’s case law, I disagree with its application
of that law to these proceedings.
My disagreement starts with treating Verma’s motion to dismiss as a
motion for summary judgment. “A motion to dismiss is generally based on
the claim that the pleader has failed to state a claim upon which any relief
may be granted.” Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308,
310 (Iowa 1982); see also Iowa R. Civ. P. 1.421(1)(f ). Because that kind of
motion challenges the sufficiency of the pleadings, “facts not contained in
the pleadings will not be considered.” Troester, 328 N.W.2d at 310. But here,
Verma moved to dismiss under Iowa Code section 147.140(6), not Iowa Rule
of Civil Procedure 1.421. The district court recognized the difference, stating
that “because Defendants’ motion is based on Iowa Code section 147.140,
facts outside the petition must also be considered.”
In making that statement, the court relied on our decision in Butler v.
Iyer, where we found “that facts outside the petition are relevant to
determine compliance with section 147.140, particularly the affidavits in the
motion-to-dismiss record and the various pleadings and filing dates.”
No. 21-0796, 2022 WL 1100275, at *8 (Iowa Ct. App. Apr. 13, 2022). That
decision is not an outlier. Our supreme court has recognized that facts
outside the pleadings may be considered in ruling on a motion to dismiss
15
“when (1) those facts arise after the plaintiff has filed the petition, (2) the
parties do not dispute those facts, and (3) the issues in the motion to dismiss
do not concern the adequacy of the petition to state a claim for relief.” Carroll
v. Martir, 610 N.W.2d 850, 856 (Iowa 2000). Each circumstance is present
here. The certificate of merit was served after the petition was filed; the
existence of the certificate, the date it was served, and its contents are
undisputed; and the issue of whether the certificate complies with section
147.140 does not concern whether the petition fails to state a claim for relief.
In addition, no party objected to the court considering matters outside the
pleadings. See id. (noting facts outside the pleadings may be considered when
“neither party voiced objection to this procedure”).
I recognize that Carroll involved a motion to dismiss for delay of
service and that cases applying its principles have also arisen in that same
context. See, e.g., Rucker v. Taylor, 828 N.W.2d 595, 599 (Iowa 2013) (noting
that motions to dismiss for failure to provide timely service are an exception
to the rule that facts outside the pleadings may not be considered). But the
supreme court has reviewed motions under Iowa Code section 147.140(6) as
motions to dismiss, and it has done so without converting them to summary
judgment motions—even when the motions relied on facts outside the
pleadings. See, e.g., Rarick v. Smidt, 36 N.W.3d 1, 3, 8–9 (Iowa 2026)
(considering a certificate of merit served after the defendant’s answer in
ruling on the defendant’s motion to dismiss, along with extrinsic evidence
submitted by the plaintiff in resistance to the motion); Lofgren v. Simpson, 36
N.W.3d 34, 42 (Iowa 2026) (finding no waiver where the “defendants filed
their motion to dismiss before the district court’s dispositive motion
deadline”); Shontz v. Mercy Med. Ctr.-Clinton, Inc., 33 N.W.3d 598, 604
(Iowa 2026) (distinguishing “a motion to dismiss with prejudice under Iowa
Code section 147.140” from “summary judgment under Iowa Rule of Civil
16
Procedure 1.981”); Est. of Fahrmann v. ABCM Corp., 999 N.W.2d 283, 286
(Iowa 2023) (examining whether the plaintiffs’ initial disclosures
substantially complied with the statute in reviewing the district court’s ruling
granting the defendants’ motion to dismiss). Our court has done the same.
See, e.g., McHugh v. Smith, 966 N.W.2d 285, 287, 289–91 (Iowa Ct.
App. 2021); Butler, 2022 WL 1100275, at *2, 8.
The parties and the district court treated Verma’s motion as a motion
to dismiss, and they applied the sixty-day deadline for dispositive motions in
the trial scheduling and discovery plan. We should do the same. The district
court’s order setting the trial date and approving the plan only modified the
deadline for summary judgment motions, requiring those motions to be filed
“no later than ninety (90) days prior to the commencement of trial.” I
disagree with the majority that where “the court sets a summary-judgment
deadline separately from the deadline for other pre-trial motions, the
summary-judgment deadline is the dispositive-motion deadline that serves
as the bright line for determining waiver of a defendant’s dismissal right
under section 147.140(6).” Motions to dismiss can be dispositive motions,
and they can be used to challenge defective certificates of merit under section
147.140(6).6 See Rarick, 36 N.W.3d at 7; Butler, 2022 WL 1100275, at *2.
Because Verma’s motion to dismiss was filed before the unmodified
sixty-day deadline in the trial scheduling and discovery plan, I would affirm
the district court’s ruling denying the Estate’s waiver arguments under the
6
While the supreme court in Kirlin v. Monaster noted the district court had denied
a motion to dismiss that challenged a certificate of merit “because, at the pleadings stage,
it could not consider facts outside the [plaintiffs’] petition,” it did not review or approve
of that ruling. 984 N.W.2d 412, 414 (Iowa 2023). Instead, the court simply cited it as part
of the case’s procedural history leading up to the defendants’ summary judgment motion.
Id.
17
bright-line rule in Banwart, 18 N.W.3d at 277–78; see also Rarick, 36 N.W.3d
at 7 (rejecting the plaintiff’s “waiver-related arguments,” whether framed as
“estoppel, consent, laches or the like,” under Banwart). The Estate’s
substantial-compliance and constitutional arguments are also foreclosed by
Banwart, 18 N.W.3d at 275–76, and Rarick, 36 N.W.3d at 9, 11. For these
reasons, I dissent from the majority’s reversal of the district court’s ruling
dismissing this action.
18