Case No. 17-1860

Andrew Gerth
v.
Iowa Business Growth, Inc. and Dan Robeson

Appellant

Andrew Gerth

Appellee

Iowa Business Growth, Inc. and Dan Robeson

Attorney for the Appellant

Erik S. Fisk (until withdrawal) and John F. Fatino

Attorney for the Appellee

Abigail L. Thiel and Gary R. Fischer

Court of Appeals

Court of Appeals Opinion

Summary

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (13 pages)

            Andrew Gerth appeals the partial dismissal of his second lawsuit (No. LACL138027) and the complete dismissal of his third lawsuit (No. LACL138196) by the district court.  Gerth challenges the district court’s ruling that he was attempting to resurrect the same claims from his first lawsuit with the amendment to his second lawsuit.  He also challenges the district court’s dismissal of his third lawsuit, a copy of his first lawsuit; he argues the savings statute of Iowa Code section 614.10 (2016) is applicable to revive his dismissed first lawsuit.  OPINION HOLDS: Because Gerth does not challenge the district court’s actual reason for dismissing his age-discrimination claims in his second lawsuit, and because the argument he makes on appeal was not presented to the district court on this record, we affirm the district court’s partial dismissal of Gerth’s second lawsuit (No. LACL138027).  Additionally, because the savings statute is not applicable to Gerth’s third lawsuit (No. LACL138196), we affirm the district court’s dismissal.  However, we reverse in part because each of the dismissals should be without prejudice.