Glenn R. Lambert, Stephen G. Lambert, Phillip R. Lambert, Thomas A. Lambert, Linda A. Hicks & Janet S. Ruddy D/B/A Lambert Farms Partnership vs. The Iowa Department of Transportation

IN THE SUPREME COURT OF IOWA
No. 09–0998
Filed September 30, 2011
GLENN R. LAMBERT, STEPHEN G. LAMBERT,
PHILLIP R. LAMBERT, THOMAS A. LAMBERT,
LINDA A. HICKS & JANET S. RUDDY d/b/a
LAMBERT FARMS PARTNERSHIP,
Appellees,
vs.
THE IOWA DEPARTMENT OF TRANSPORTATION,
Appellant.
Appeal from the Iowa District Court for Jones County, David M.
Remley, Judge.
The defendant appeals from a judgment issuing a writ of
mandamus, following the denial of the defendant’s motion for summary
judgment based on claim preclusion. AFFIRMED.
Thomas J. Miller, Attorney General, Richard E. Mull and Robin G.
Formaker, Assistant Attorneys General, for appellant.
Kristofer J. Lyons and Michael A. Bowman of Shimanek,
Shimanek, & Bowman, Monticello, for appellees.

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MANSFIELD, Justice.
I. Introduction.
This case presents a close, but narrow, question: When a court
order dismissing an action reveals the court’s intent to preserve a claim
arising out of the same transaction that is pending in another lawsuit,
should the claim in the other lawsuit be allowed to proceed? We
conclude that it should, even if the language of the dismissal order is less
explicit than it might have been. Accordingly, we affirm the judgment
entered in the second action in favor of the plaintiff, which judgment
followed a denial of the defendant’s motion for summary judgment based
on claim preclusion.
II. Factual and Procedural Background.
Plaintiffs Glenn Lambert, Stephen Lambert, Phillip Lambert,
Thomas Lambert, Linda Hicks, and Janet Ruddy (the Lamberts) own
farmland in Jones County. In 2001, the Iowa Department of
Transportation (IDOT) condemned part of that land to be used for the
relocation of Highway 151. The notice of condemnation identified certain
property that would be acquired permanently, but also gave IDOT
temporary easement rights to another area where borrow material would
be removed for use in the highway project.
The easement language provided that IDOT would restore the
borrow area upon completion of the project. Thus, it said that “[e]ight
inches of topsoil shall be removed, stockpiled and replaced on the land to
be acquired by said temporary easement to secure borrow material.”
(Emphasis added.) The notice also provided that IDOT would not repair
or replace any damaged or destroyed tiles, but would “leave the surface
of the borrow area sloped to drain.” In May 2001, the Compensation
Commission approved a $117,455 condemnation award to the Lamberts.

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Subsequently, the Lamberts discovered that IDOT had not replaced
the topsoil in the borrow area nor graded the land to allow drainage.
Therefore, on October 13, 2006, after unsuccessfully trying to obtain
voluntary performance from IDOT and administrative relief from the
State Appeals Board, the Lamberts filed a petition at law naming both
IDOT and the State as defendants (LACV 003770). The Lamberts alleged
the defendants had breached their promise in the condemnation
proceedings to properly restore the borrow area.
IDOT’s motion to dismiss was granted, but the State remained a
defendant. Later, the State moved for summary judgment on March 4,
2008. The State argued, among other things, that the Lamberts’
exclusive remedy was a mandamus action to compel further
condemnation proceedings, since the Lamberts were claiming, in effect, a
further unauthorized and uncompensated taking.
On May 19, 2008, the district court granted the State’s motion. It
cited Mapes v. Madison County, 252 Iowa 395, 398, 107 N.W.2d 62, 64
(1961), for the proposition that “[w]here prior condemnation did not
acquire the rights as to property taken later, the proper remedy also is
mandamus to compel further condemnation.” The court also explained:
Plaintiffs are unable to generate any genuine issue of
material fact on the State’s primary argument, which is that
Plaintiffs’ claims stem from their assertion that they have not
been fully compensated for the taking of their land. The
nature of Plaintiffs’ claim is that they have not received just
compensation, and the Court construes Plaintiffs’ action as
one of inverse condemnation. As such, the appropriate
forum for Plaintiffs’ claims is a mandamus action, in which it
can be determined whether the prior condemnation resulted
in Plaintiffs acquiring the rights to which they were entitled
under the condemnation agreement. Additionally, Plaintiffs
have not set forth a specific request that mandamus be
considered as a remedy in this action. In fact, Plaintiffs have
filed a separate mandamus action in Jones County District
Court. The Court finds no reason to delay entry of a ruling
on the pending Motions for Summary Judgment in this

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action until the separate mandamus action has been
concluded. Therefore, the Court finds that the State’s
Motion for Summary Judgment should be granted as to the
State’s argument that Plaintiffs’ exclusive remedy is a
mandamus action to compel condemnation proceedings.
Because mandamus is the exclusive remedy for Plaintiffs’
claims, the Court does not reach the other arguments made
by the State in its Motion for Summary Judgment, and finds
that Plaintiffs’ Motion for Summary Judgment should be
denied in its entirety.
In the conclusion to its order, the district court stated that “the
State’s Motion for Summary Judgment is GRANTED as to the State’s
argument that Plaintiffs’ exclusive remedy is a mandamus action to
compel condemnation proceedings” and dismissed cause LACV 003770.
Meanwhile, after receiving the State’s March 4, 2008 summary
judgment motion in LACV 003770, the Lamberts commenced a separate
petition for writ of mandamus against IDOT (EQCV 004228). On May 7,
2008, before the district court had entered its May 19 summary
judgment ruling in LACV 003770, IDOT responded to the mandamus
petition in EQCV 004228 with a motion to dismiss, stay, or consolidate.
IDOT argued that the new action (EQCV 004228) should be dismissed
because the Lamberts had not pled the correct form of mandamus. (The
Lamberts had sought mandamus to compel IDOT to perform the
restoration work, rather than mandamus to compel further
condemnation proceedings.) IDOT also argued that if the new action
were not dismissed, it should be stayed or consolidated with the earlier
action.
Upon receiving word that the State’s motion for summary
judgment had been granted in LACV 003770, IDOT filed a second motion
to dismiss EQCV 004228 on June 2, 2008. This time, IDOT argued the
dismissal of the earlier action barred the Lamberts from bringing the new
action under principles of both claim and issue preclusion.

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On or about June 12, 2008, the Lamberts moved to enlarge or
amend the order dismissing LACV 003770 to clarify that it would allow
for a separate mandamus action, moved to amend the petition in LACV
003770 to add a mandamus claim, and also moved to amend their
petition in EQCV 004228 to revise their mandamus allegations.
On June 17, 2008, and July 1, 2008, the district court ruled on
the pending motions in EQCV 004228. It denied IDOT’s motions to
dismiss and granted the Lamberts’ motion to amend. It determined that
the new mandamus allegations were in the correct form, that issue
preclusion did not apply, and that, under principles of claim preclusion,
the dismissal of LACV 003770 did not bar the Lamberts from proceeding
with a separate mandamus action in EQCV 004228.
The following month, on August 26, 2008, the district court ruled
on the Lamberts’ motions in LACV 003770. It found the Lamberts’
motion to enlarge or amend was untimely since it had not been filed
within ten days of the underlying order as required by rule 1.904(2). As
to the Lamberts’ motion to amend, the district court concluded, “Because
the Petition no longer exists, legally, the Plaintiff cannot amend the
Petition, as would be permitted by Iowa Rules of Civil Procedure.”
Proceedings in EQCV 004228 continued. On April 6, 2009, IDOT
filed a motion for summary judgment, arguing the petition was barred by
claim preclusion, issue preclusion, and the statute of limitations. On
June 2, 2009, the district court denied this motion except as to specific
performance relief, which it found was barred by the doctrine of issue
preclusion. With regard to the claim preclusion defense, the district
court acknowledged that the mandamus claim “could have been brought
in the first case and could have been fully and fairly adjudicated in the
first case.” Yet it concluded that an exception to normal rules of claim

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preclusion applied because the order granting the State’s motion for
summary judgment in LACV 003770 “contemplated that Lamberts’
mandamus claim (EQCV 004228) would be preserved” and therefore was
not “an adjudication on the merits of the claim for mandamus.”
Subsequently, based on a stipulation of the parties, the district
court entered an order granting the Lamberts’ requested writ of
mandamus while preserving IDOT’s appeal rights on claim preclusion.
IDOT’s appeal on the question of claim preclusion is now before us.
IDOT argues that the final dismissal of LACV 003770 on May 19, 2008,
has claim preclusive effect and should have barred the Lamberts from
pursuing EQCV 004228.
III. Standard of Review.
We review a ruling on a motion for summary judgment for errors at
law. Schneider v. State, 789 N.W.2d 138, 143 (Iowa 2010).
IV. Analysis.
This appeal involves the question of “claim splitting.” A valid final
judgment on a claim generally precludes relitigation of the same claim or
any part of it. Arnevik v. Univ. of Minn. Bd. of Regents, 642 N.W.2d 315,
319 (Iowa 2002). The rule governing claim preclusion is “based on the
principle that a party may not split or try his claim piecemeal, but must
put in issue and try his entire claim or put his entire defense in the case
on trial.” B & B Asphalt Co. v. T.S. McShane Co., 242 N.W.2d 279, 286
(Iowa 1976). Thus, a party “is not entitled to a second day in court by
alleging a new ground of recovery for the same wrong.” Arnevik, 642
N.W.2d at 319 (holding an indemnification claim based on breach of
contract was barred by claim preclusion due to the dismissal of a prior
indemnification claim based on respondeat superior).

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IDOT contends that the rule against claim-splitting applies here
because nothing prevented the Lamberts from including their mandamus
claim in their original petition in LACV 003770. Accordingly, IDOT
maintains the Lamberts are precluded by the final judgment in LACV
003770 from pursuing a mandamus claim in EQCV 004228.
We have said there are three requirements for the doctrine of claim
preclusion to apply:
(1) “the parties in the first and second action were the same”;
(2) “the claim in the second suit could have been fully and
fairly adjudicated in the prior case”; and (3) “there was a
final judgment on the merits in the first action.”
George v. D.W. Zinser Co., 762 N.W.2d 865, 868 (Iowa 2009) (quoting
Arnevik, 642 N.W.2d at 319) (internal quotation marks omitted). We
assume without deciding that these elements have been met here. See
Peppmeier v. Murphy, 708 N.W.2d 57, 66 (Iowa 2005) (noting that except
in limited situations, a summary judgment constitutes a judgment on the
merits); Fischer v. City of Sioux City, 654 N.W.2d 544, 548 (Iowa 2002)
(indicating that res judicata may apply if the parties are identical or are
in privity with the parties to the prior action); Charles Gabus Ford, Inc. v.
Iowa State Highway Comm’n, 224 N.W.2d 639, 643 (Iowa 1974)
(indicating that a petition for writ of mandamus may be joined with
claims for legal relief against the same defendant).
The Lamberts argue, nonetheless, that an exception to the normal
rules of claim preclusion arises when a court order in the first action
authorized claim-splitting. They maintain this is what happened here.
Notably, Restatement (Second) of Judgments section 26, entitled
“Exceptions to the General Rule Concerning Splitting,” provides that a
second action will not be barred when “[t]he court in the first action has
expressly reserved the plaintiff’s right to maintain the second action.”

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Restatement (Second) of Judgments § 26(b), at 233 (1982); see also
Prochelo v. Travelers Ins. Co., 376 N.W.2d 591, 593 (Iowa 1985) (quoting
this provision with implicit approval).
Although it would be somewhat of an overstatement to say that the
district court in LACV 003770 “expressly reserved” the pursuit of a
separate mandamus claim in EQCV 004228, we agree with the Lamberts
that this is the gist of what occurred. The district court stated:
[T]he appropriate forum for Plaintiffs’ claims is a mandamus
action . . . . In fact, Plaintiffs have filed a separate
mandamus action in Jones County District Court. The
Court finds no reason to delay entry of a Ruling on the
pending Motions for Summary Judgment in this action until
the separate mandamus action has been concluded.
The fair implication of this language was that the Lamberts would
continue to have access to that “appropriate forum.” Otherwise, why
would the court have used the present tense (i.e., the appropriate forum
“is” a mandamus action as opposed to “would have been” a mandamus
action)? Also, why would the court have noted the filing of the separate
mandamus action (which would not have mattered if that action was
about to be precluded)? Furthermore, the language about “no reason to
delay” makes sense only if we assume the district court did not believe its
grant of summary judgment in LACV 003770 would toll the death knell
for EQCV 004228. If summary judgment in LACV 003770 terminated
both actions, then there would be a potential reason to delay entry of a
ruling in LACV 003770 until the other case was concluded. In short, we
agree with the district court in the second action that the court in the
first action “contemplated that Lamberts’ mandamus claim (EQCV
004228) would be preserved.”
Other courts have likewise rejected claim preclusion defenses in
these circumstances, i.e., where the court in the first action used

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language indicating it presumed the second action would continue. See,
e.g., Dodd v. Hood River Cnty., 59 F.3d 852, 862 (9th Cir. 1995) (“We
conclude that the Oregon courts sufficiently reserved this issue by
repeatedly acknowledging that the Dodds’ federal constitutional claims
were not before them and were pending in the federal district court.”);
Stroik v. Ponseti, 699 So.2d 1072, 1077 (La. 1997) (holding a federal
magistrate judge’s statement that the plaintiff would not be prejudiced by
denial of her amendment to add state law claims because she had a
pending state court action was sufficient to preserve those claims and
avoid res judicata effects).
It is true that comment b to Restatement (Second) of Judgments
section 26 provides:
It is emphasized that the mere refusal of the court in
the first action to allow an amendment of the complaint to
permit the plaintiff to introduce additional material with
respect to a claim, even where the refusal of the amendment
was urged by the defendant, is not a reservation by the court
within the meaning of Clause (b).
IDOT points out that after LACV 003770 had been dismissed, the
Lamberts tried unsuccessfully to amend their petition in LACV 003770 to
add the mandamus claim. In addition to relying on the foregoing
language from comment b, IDOT also argues we should treat the failed
effort to amend as an acknowledgment by the Lamberts that they
realized their mandamus claim would be barred unless it were included
in the original action.
We disagree. In the first place, this case involves more than a
“mere refusal” by the court in the first action to allow an amendment.
Rather, critical to our resolution of this case is the language in the LACV
003770 dismissal order that indicated the proceedings in EQCV 004228
would continue. Nor do we read the Lamberts’ flurry of June 2008

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activity as anything other than a reaction to IDOT’s litigation stance.
After the district court dismissed LACV 003770 on May 19, 2008, IDOT
filed a new motion in EQCV 004228 on June 2, 2008, arguing claim
preclusion. At this point, the Lamberts hedged their bets, not only by
resisting the new motion and arguing a lack of claim preclusion, but also
by seeking to enlarge or amend the dismissal order in LACV 003770 and
seeking to amend the petition in LACV 003770. One can fault the
Lamberts for their timing (as the district court in LACV 003770 did), but
their actions cannot reasonably be read as a concession that the
dismissal of LACV 003770 would have claim preclusive effects on EQCV
004228.
IDOT’s strongest argument is that the Restatement speaks in
terms of the first court having “expressly reserved” the plaintiff’s right to
maintain the second action. IDOT argues, and we tend to agree, that the
language in the LACV 003770 dismissal order falls short of an express
reservation. While the Restatement is a restatement of common law by
respected legal scholars that may have persuasive power, it is not
binding on us. In the development of our common law, we may look to
the Restatement and consider its persuasiveness, but we are not bound
to follow it. See Page Cnty. Appliance Ctr., Inc. v. Honeywell, Inc., 347
N.W.2d 171, 177 (Iowa 1984) (declining to follow the Restatement of
Torts in light of established Iowa common law precedent).
In this case, we believe Restatement section 26(b) needs to be read
in conjunction with court precedents and the underlying policy that
“[t]raditional rules of res judicata allow judges to control the preclusive
effects of their decisions.” Adolph Coors Co. v. Sickler, 608 F. Supp.
1417, 1432 (C.D. Cal. 1985); see also 18 Charles Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure § 4413, at

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312 (2d ed. 2002) (noting that a court “should have power to narrow the
ordinary rules of claim preclusion”). A clear signal from a court that it
did not intend its decision to have preclusive effect on a specific claim
should be honored, even if that signal arguably does not amount to an
“express reservation.”
IDOT also cites three cases that, it contends, enforce the “express
reservation” rule set forth in the Restatement. We find them
distinguishable. In PCL Construction Services, Inc. v. United States, 84
Fed. Cl. 408, 435–36 (2008), which involved a complicated payment
dispute relating to the construction of a visitor’s center at Hoover Dam,
the court had expressly reserved certain claims in its prior rulings.
Relying on those express statements, the court found that other claims
had not been reserved. As it put it, “In contrast with the express
reservation language on liquidated damages, retainage and the turntable
claims contained in the Conclusion sections of PCL II and PCL III, there is
no mention in the Conclusion sections of a reservation of delay or CRX
claims.” Id. at 437. Here, on the other hand, the district court in LACV
003770 discussed the mandamus proceeding alone, did so in the
paragraph immediately before its conclusion, and used language
suggesting it would not be precluded.
In O’Connor v. Pierson, 482 F. Supp. 2d 228, 229 (D. Conn. 2007),
a teacher initially filed a lawsuit against his employer, alleging both
federal and state law claims. Later, after a federal magistrate judge
recommended the federal court decline to exercise supplemental
jurisdiction over the state law claims, the teacher brought a separate
state court action. Id. The state court denied a motion to dismiss that
action based on the pendency of the federal action, and the state court
case was ultimately resolved in the defendant’s favor. Id. at 230. The

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defendant then sought dismissal of the federal court case based on claim
preclusion. In granting the defendant’s motion, the federal district court
gave the following explanation:
Plaintiff contends that the Superior Court’s denial of the
defendants’ motion to dismiss can be interpreted to include a
tacit ruling that he would be able to proceed here without
regard to any judgment that might subsequently enter in the
state court case. Even assuming that is what the state court
intended, which seems unlikely, plaintiff’s argument must be
rejected. As shown by the comment to § 26(1)(b), the section
requires a clear statement by the court in the first action
that its “judgment is ‘without prejudice’ (or words to that
effect) to a second action on the omitted part of the claim,
expressed in the judgment itself, or in the findings of fact,
conclusions of law, opinion, or similar record, . . .”
Restatement (Second) of Judgments § 26 cmt. b. Nothing
like this can be found in the record of the state court case.
Id. at 234. In short, O’Connor holds that a mere denial of a defendant’s
motion to dismiss based on the pendency of another action is an
insufficient basis for a plaintiff to argue later that the court did not
intend its ultimate ruling to have preclusive effect on the other action.
With that proposition, we agree. But this case is different. Here, the
final order resolving the first action reflected an understanding the
second action would continue.
Finally, Yapp v. Excel Corp., 186 F. 3d 1222, 1225 (10th Cir. 1999),
involved two separate federal actions by an employee—for unpaid
overtime compensation and for wrongful termination. After the court
denied the employer’s motion to consolidate the cases, the parties settled
the overtime case and caused it to be dismissed with prejudice. Id. The
district court then granted the employer’s motion for summary judgment
in the wrongful termination case based on claim preclusion. Id. at 1225–
26. Nothing in the stipulation for dismissal filed in the overtime case
suggested the other action would continue, and a majority of the

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appellate panel (one judge dissenting) deemed the mere denial of the
motion to consolidate insufficient. Id. at 1227–29. Again, we have a
different situation here, since language contemplating preservation was
set forth in the final order disposing of the case.
IDOT also argues it was inconsistent for the district court in EQCV
004228 to give issue preclusive effect but not claim preclusive effect to
the judgment in LACV 003770. We do not share that view. These are
two different doctrines. Even when an exception to the rule against
claim-splitting has been established, the judgment in the first action is
still a final judgment. It can have the effect of precluding the relitigation
of issues that were actually litigated and determined, whose
determination was essential to the judgment. See Soults Farms, Inc. v.
Schafer, 797 N.W.2d 92, 103–04 (Iowa 2011) (setting forth the elements
of issue preclusion).
V. Conclusion.
For these reasons, we affirm the judgment below.
AFFIRMED.

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