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IN THE COURT OF APPEALS OF IOWA No. 1-759 / 11-0120 Filed November 23, 2011

BETTY DOBRATZ, P.H.D., and TERRY BESSER, P.H.D., Plaintiffs-Appellants/Cross-Appellees, vs. DANIEL KRIER, P.H.D., Defendant-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, William J. Pattinson, Judge.

ISU professors appeal the district court's ruling the tort of abuse of process requires misuse of a judicial process. AFFIRMED.

Mark D. Sherinian and Melissa C. Hasso of Sherinian, Legrant, and Hasso Law Firm, West Des Moines, for appellants. Thomas J. Miller, Attorney General and George A. Carroll, Assistant Attorney General, Des Moines, for appellee.

Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.

2 EISENHAUER, J. This appeal presents an issue of first impression in Iowa --whether use of an internal administrative complaint procedure may be the basis for an "abuse of process" tort. We conclude this tort requires misuse of a judicial process.

Accordingly, we affirm. I. Background Facts and Proceedings. Plaintiffs Betty Dobratz and Terry Besser are tenured professors at Iowa State University. Defendant Daniel Krier is an assistant professor at ISU. In March 2008, Krier filed a formal complaint of misconduct with the director of ISU's office of equal opportunity and diversity. Krier alleged misconduct by

plaintiffs and three other "senior colleagues . . . who have administrative power over me." It is undisputed Krier's formal complaint "was filed under [ISU's]

administrative rules contained in the faculty handbook." The faculty handbook provides: 7.2.5 Formal Complaint Process The formal complaint process is based upon peer review and respect for due process. It is an academic and not a judicial process. The goal is to determine the truth and to recommend and apply remedies and sanctions in keeping with the freedoms and responsibilities of the academic environment. In May 2008, Krier amended the complaint to assert two additional charges: (1) Dobratz attempted to improperly influence the outcome of the

investigation of Krier's grievance and (2) Dobratz and Besser retaliated against him "for having filed a grievance against them." A faculty review board (FRB) was convened to respond to Krier's complaints. The FRB hired Professor Lon Moeller of the University of Iowa to

3 conduct an investigation. Moeller's June 6, 2008 final report concluded the

evidence did not support Krier's formal charges. The report was sent to Krier and the five respondents for comments. On June 25, 2008, the FRB issued its recommendation to the ISU provost: After careful consideration of the charges brought by Dr. Krier, the investigative report prepared by Prof. Moeller, and the responses . . . the FRB has decided that the evidence does not sufficiently support any of the charges . . . and we recommend that the case be dismissed . . . . In July 2008, ISU's provost dismissed Krier's administrative complaints: "I am accepting the FRB finding that there was not conduct in violation of the faculty conduct policy . . . ." In December 2008, plaintiffs sued Krier for abuse of process, alleging: The Defendant Krier used the administrative complaint process primarily to (1) delay or avoid the tenure and promotion decision which he was facing, (2) to disqualify Dobratz and Besser from their roles in his tenure and promotion decision, and/or (3) to intimidate other faculty members who might be critical of his candidacy for promotion and tenure. In March 2010, jury trial commenced. The jury's special verdict responses found Krier committed "abuse of process" when he filed "either or both administrative complaints." damages to plaintiffs. Krier filed a motion for judgment notwithstanding the verdict.1 The court granted Krier's motion, dismissed the petition, and vacated the jury's verdict. The jury awarded compensatory and punitive

The district court reserved ruling on Krier's motions for directed verdict at the end of the plaintiff's evidence and again at the close of all the evidence citing the "Uhlenhopp Rule." See Butcher v. White's Iowa Inst., 541 N.W.2d 262, 264 (Iowa Ct. App. 1995). The district court explained: "Doing so gives the jury an opportunity to

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4 The district court found: [A]s a matter of law . . . [ISU's] faculty complaint procedure which Dr. Krier used in 2008 to lodge his charges . . . is not a "legal process" encompassed by the "abuse of process" tort. .... There is no doubt that the vast majority of . . . jurisdictions have declined to extend the abuse-of-process tort to nonjudicial proceedings. . . . Those courts that have refused to apply the abuse-ofprocess tort to administrative proceedings uniformly based their decision on the notion that the tort's essence ". . . lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of penetrating an injust ice." Accordingly, if the purportedly abused process has no connection to a judicial forum it is not actionable. Such remains the case in Iowa. Dr. Kreir's use of [ISU's] complaint process in no way misused the power of this or any other court. It follows then, that the verdict . . . must be set aside. (Citations omitted.) Plaintiffs appeal. II. Scope of Review. "A motion for judgment notwithstanding the verdict is intended to allow the district court to correct any error in denying a motion for directed verdict." Van Sickle Constr. Co. v. Wachovia Commercial Mortg., 783 N.W.2d 684, 687 (Iowa 2010). We review for correction of errors at law. Id. III. Merits. Plaintiffs first argue the district court erred in finding the "abuse of process" tort cannot be based on an administrative proceeding. Because we find the

consider the evidence, return a verdict, and potentially reach the same conclusion the trial court had tentatively reached."

5 resolution of this issue dispositive, we need not address the other issues raised on appeal. 2 Plaintiffs contend Iowa precedent does not prevent the acceptance of an expansive interpretation of the "legal process" element of this tort and argue "the victim of the abusive institution of proceedings suffers the same injuries, whether those proceedings are administrative or judicial." Plaintiffs assert Iowa should follow Hillside Assoc. v. Stravato, 642 A.2d 664, 668-69 (R.I. 1994), and hold the "abuse of process" tort can be based on administrative proceedings. While we agree this is an issue of first impression in Iowa, we note the Iowa Supreme Court has discussed the scope of this tort's "legal process" element. In Fuller v. Local Union No. 106, 567 N.W.2d 419, 421 (Iowa 1997), the petition was based on the allegation defendant "filed a false police report causing the Des Moines police department's" OWI stop of plaintiff. The court ruled a report to the police is not sufficient "legal process." Id. at 422. The Fuller court's discussion of the "legal process" element contains multiple references to "court" or "judicial" actions or authority: The tort of abuse of process is "the use of legal process, whether criminal or civil, against another primarily to accomplish a
In January 2009, a deputy attorney general reviewed the pleadings and certified, "on the basis of the information now available," Krier was acting in the scope of his employment. In May 2009, Krier answered and asserted the affirmative defense he was "acting in the scope of his employment as an employee of the State of Iowa when the incidents relating to Plaintiffs' abuse of process claim occurred." The court submitted Krier's scope-of-employment defense to the jury and instructed the jury damages were recoverable only if plaintiffs proved Krier "was acting outside the scope of his employment at [ISU] when he filed his complaints . . . ." In its ruling on Krier's post-trial motions, the court ruled the scope-of-employment issue "was factually based, and, as such, the decision in that regard belonged to the jury." Krier now cross-appeals arguing he was acting within his scope of employment and is therefore immune from suit and liability. Because we affirm the dismissal of the petition based on the scope of the "abuse of process" tort, we need not address this issue of first impression.
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6 purpose for which it was not designed." The essence of this tort is an improper purpose for using the legal process. . . . The three elements of an abuse-of-process claim are: (1) the use of a legal process; (2) its use in an improper or unauthorized manner; and (3) the plaintiff suffered damages as a result of the abuse. We have not precisely identified what action constitutes a "legal process" sufficient to satisfy the first element. . . . One authority defines the required "legal process" as "process which emanates from or rests upon court authority, and which constitutes a direction or demand that the person to whom it is addressed perform or refrain from doing some prescribed act." 1 Am. Jur. 2d Abuse of Process

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