In the Matter of the Estate of Michael E. O'Banion

• Court: Court of Appeals of Iowa
• Decided: February 5, 2020
• Docket: 19-0485
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-0485 Filed February 5, 2020

IN THE MATTER OF THE ESTATE OF MICHAEL E. O’BANION, Deceased,

RANDY PAPER, Individually and as Executor of the ESTATE OF MICHAEL E. O’BANION, Deceased, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

An appellant appeals an order granting the appellees’ motion to amend

pleadings. APPEAL DISMISSED.

Paul L. Macek of Hopkins & Huebner, P.C., Davenport, and Rex J. Ridenour

of Rex J. Ridenour Attorney at Law, PLLC, Davenport, for appellant.

Candy K. Pastrnak of Pastrnak Law Firm, P.C., Davenport, and Timothy D.

Roberts of Anderson, Roberts, Porth, Wallace & Stewart LLP, Burlington, for

appellee.

Considered by Bower, C.J., and May and Greer, JJ. 2

MAY, Judge.

This case involves a will contest. Randy Paper appeals the probate court’s

grant of a motion to amend pleadings under Iowa Rule of Civil Procedure 1.402(4).

The amendment added Paper as a necessary party.

As the appellees point out, however, the grant of a motion to amend “is

procedural in nature, it does not dispose of the issue on the merits, and is not and

should not be considered a ‘final’ ruling.” Therefore, appellees suggest, this court

may lack jurisdiction to hear this appeal. But Paper responds that, under Iowa

Code section 633.36 (2019), “[o]rders in probate are final orders and appealable

as a matter of right.”

Generally, a party may appeal as of right—meaning, without a grant of

permission—only from “final orders and judgments of the district court involving

the merits or materially affecting the final decision.” Iowa. R. App. P. 6.103(1). An

order is “final” if it “conclusively adjudicates all of the rights of the parties.” Richers

v. Marsh & McLennan Grp. Assocs., 459 N.W.2d 478, 480 (Iowa 1990). A final

order leaves the district court with “nothing more to do than execute that order.”

See In re M & S Grading, Inc., 526 F.3d 363, 369 (8th Cir. 2008); accord In re

Marriage of Brown, 776 N.W.2d 644, 648 (Iowa 2009) (“It must leave nothing more

to be done in order to effectuate the court’s disposition of the matter.” (citation

omitted)).

An order granting a motion to amend pleadings does not qualify as a final

order. It does not end the litigation. If anything, it extends the litigation by adding

new issues for the court to resolve. So we agree with appellee that the order at

issue here was not a “final” order in any ordinary sense. 3

As appellant notes, though, Iowa Code section 633.36 provides: “All orders

and decrees of the court sitting in probate are final decrees as to the parties having

notice and those who have appeared without notice.” (Emphasis added.) If we

were to apply section 633.36 “as it is written,” we might well conclude the probate

court’s “order” granting leave to amend was “final” for purposes of appeal. See

Fishel v. Redenbaugh, No. 18-1715, 2019 WL 6358430, at *2 (Iowa Ct. App. Nov.

27, 2019) (explaining we are “constitutionally prohibited” from legislating; instead,

“our duty” is to “accept the law as the legislative body enacts it”; therefore, “we

apply each statute ‘as it is written’”).

“As an intermediate appellate court,” though, “the Iowa Court of Appeals

must follow the legal precedents of the Iowa Supreme Court.” State v. Jackson,

No. 12-1748, 2014 WL 69771, at *1 (Iowa Ct. App. Jan. 9, 2014); accord State v.

Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to

overturn Iowa Supreme Court precedent.”). And “our supreme court has held

section 633.36 does not apply to ‘all orders.’” In re Kallmer, No. 18-0177, 2019

WL 5067130, at *3 (Iowa Ct. App. Oct. 9, 2019) (quoting In re Estate of Troester,

331 N.W.2d 123, 126 (Iowa 1983)). Specifically, in Troester, our supreme court

“held section 633.36 does not apply to ‘ordinary orders’ that are ‘normally found in’

civil actions.” Id. (citing Troester, 331 N.W.2d at 126).

Motions to amend pleadings are standard fare in civil litigation. Likewise,

orders permitting amendments are “ordinary orders” that are “normally found in”

civil actions. See Troester, 331 N.W.2d at 126. So, under Troester, the order at

issue here is not a “final” order for purposes of appeal under section 633.36. 4

We have considered Iowa Rule of Appellate Procedure 6.108, under which

“we have authority to treat a notice of appeal from a non-final order as an

application for interlocutory appeal and grant the application.” In re Barbara Mills

Tr., No. 17-0610, 2017 WL 3525311, at *1 (Iowa Ct. App. Aug. 16, 2017). After

review, we conclude interlocutory review is not appropriate here. See, e.g., In re

Marriage of Graziano, 573 N.W.2d 598, 599–600 (Iowa 1998) (discussing reasons

for the limited availability of interlocutory review); Banco Mortg. Co. v. Steil, 351

N.W.2d 784, 786–87 (Iowa 1984) (same).

APPEAL DISMISSED.