author: SNELL, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Theodore J. HOVDA, Respondent.
    No. 00-1101.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Frank A. Comito and Kent A. Gummert of Gaudineer & Comito, L.L.P., West Des Moines, for respondent.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   SNELL, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct filed a complaint against respondent Theodore J. Hovda charging him with three violations of the Iowa Code of Professional Responsibility. They are DR 1-101 (maintaining the integrity of the profession); DR 1-102(A)(1)(5) and (6) (misconduct by violating a disciplinary rule, conduct prejudicial to the administration of justice, and conduct that adversely reflects on the fitness to practice law); and DR 6-101(A)(3) (neglecting a client’s legal matters). The Grievance Commission on hearing the evidence recommended that Hovda be publicly reprimanded.

Our review is required by Iowa Supreme Court Rule 118.10. We review the findings of the commission giving respectful consideration to them but are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). This conduct must be proved by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996).

The first complaint involved a real estate transaction. Another attorney, who no longer practices law, prepared an offer and acceptance for the parties. The parties signed the document, but no further legal action occurred for two years. The buyer, Joan Finer, retrieved the file from the preparing attorney and delivered it to Hovda in May 1993. Hovda wrote a letter to Margaret Foss, the seller, on May 21, 1993, advising that a short-form probate proceeding was necessary. Hovda heard nothing from Foss who died in February 1994. In May 1994, Lyle Foss was appointed executor of the Margaret Foss estate and Hovda was designated estate attorney.

Hovda kept the estate open to collect money from the buyer, Finer, on the purchase contract and to then pay funeral expenses. When the contract was paid off, Hovda sought to convey title by court officer deed. He petitioned the court for authority to convey in the summer of 1997, but never obtained a hearing. Instead, he waited for consents to be obtained from the heirs. Before that was accomplished, Hovda was suspended from the practice of law on March 18, 1998, for two months. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998). When this occurred, attorney Ron Arispe was appointed successor attorney for the estate.

During his suspension, Hovda and the estate were sued by the buyer, Joan Finer, for damages sustained as the result of the delay in the completion of the real estate transactions. Hovda settled the suit by paying the plaintiffs $6500.

Two months before bringing suit against Hovda in May 1998, Joan Finer filed a complaint against Hovda with the Ethics Board. She also filed a complaint against Ron Arispe arising out of settlement negotiations in her suit against Hovda and the Foss estate. This occurred after Arispe, representing Hovda and the estate, requested Max Kirk, representing Finer, to dismiss the complaint against Hovda as part of the settlement. The complaint against Arispe was dismissed by the Ethics Board.

In the present case, the Grievance Commission found that Hovda did not review the letter of Arispe to Max Kirk requesting the dismissal of the ethics complaint against Hovda. The commission also found that although Hovda did not personally request Finer to withdraw the complaint against him, he did request that Arispe broach that compromise with Kirk. The above facts form the basis for two ethical charges against Hovda.

The third charge occurred when Hovda failed to respond to three notices from the Board regarding these complaints. An eventual response was made by Hovda on September 14, 1998.

At the hearing before the commission, Hovda stated that he was ashamed of his failures and conduct. He acknowledged he had a serious problem with procrastination that had caused him to be suspended in 1998. In his favor, however, was testimony from attorney Phillip Garland, practicing in Hancock County, that convinced the commissioners that Hovda had changed and improved his conduct since his reinstatement in 1998. The commission also found that Hovda had undertaken successful measures since his suspension which have diminished procrastination and avoidance.

In its conclusion, the commission determined that Finer, the buyer, did not establish any attorney-client relationship with Hovda. Furthermore, no such relationship was established between Margaret Foss, the seller, and Hovda, before she died. We agree with these findings. Under the principles necessary to establish an attorney-client relationship, neither Finer nor Foss established that kind of a relationship. See Whalen v. Connelly, 545 N.W.2d 284, 295 (Iowa 1996).

The commission further found, and we do also, that Hovda’s procrastination and neglect of the Foss estate, when he served as attorney, was egregious enough to warrant a suspension. However, for the same type of neglect of probate matters he has already served a two-month suspension. We agree with the commission’s recommendation to not again suspend Hovda in view of his significant and improved handling of probate matters since his suspension. See Comm. on Prof'l Ethics & Conduct v. Clauss, 468 N.W.2d 213, 215 (Iowa 1991).

The commission recommended a public reprimand for Hovda’s conduct in ignoring the Board’s notice. We agree and so order it. See Lemanski, 606 N.W.2d at 13-14. The commission also believed that Hovda should be publicly reprimanded for indirectly seeking the withdrawal of the ethics complaint against him as a part of the settlement of the lawsuit against him brought by Joan Finer. We find on our review that a public reprimand of Hovda for this conduct is appropriate, and we so order it.

Costs of this action are taxed to respondent pursuant to Iowa Supreme Court Rule 118.22.

ATTORNEY REPRIMANDED.

McGIYERIN, S.J., participates in place of LARSON, J., who takes no part.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    ESTATE OF Dorothy KUHNS, and Jeff Kuhns and Pearl Guy, Legal Representatives of the Deceased and Executors of the Estate, Appellants, v. Dale MARCO, Appellee.
    No. 99-0930.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Brad Schroeder of the Crawford Law Firm, Des Moines, for appellants.
    Douglas A. Haag of Patterson, Lorent-zen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CADY, Justice.

In this appeal, we must decide if Iowa Rule of Civil Procedure 69(e) requires a defendant to receive notice of the action prior to the expiration of the statute of limitations before an amendment to the petition to add a plaintiff may be deemed to relate back to the original petition when the action was filed prior to the expiration of the statute of limitations. The district court concluded notice was required to be received prior to the expiration of the statute of limitations and entered summary judgment for the defendant. The court of appeals affirmed. We vacate the decision of the court of appeals, reverse the decision of the district court, and remand the case for further proceedings.

I.Background Facts and Proceedings.

On December 23, 1996, Dorothy Kuhns was operating a motor vehicle in West Des Moines. Her vehicle was involved in an accident with a vehicle operated by Dale Marco. Dorothy sustained personal injuries as a result of the accident.

Dorothy died on September 21, 1997. The cause of her death was unrelated to the accident. She was sixty-three years old.

On December 22, 1998, an action was filed against Marco to recover damages for the injuries suffered by Dorothy as a result of the automobile accident on December 23, 1996. The action was brought in the name of the estate of Dorothy Kuhns. Marco was served with notice of the action on January 9,1999.

Marco responded to the lawsuit by filing a motion to dismiss. He alleged the action was required to be brought in the name of Dorothy’s legal representative under Iowa Code section 611.20 (1999), not in the name of her estate.

The estate did not resist the motion. Instead, a motion to amend the petition was filed to add Jeffrey Kuhns and Pearl Guy as plaintiffs in them capacity as the legal representatives for Dorothy. Jeffrey Kuhns and Guy are Dorothy’s children and coexecutors under her will. The district court denied the motion to dismiss and granted the motion to amend.

Marco then filed an answer to the amended petition. The answer included the affirmative defense that the action was barred by the two-year statute of limitations.

Marco also filed a motion for summary judgment based on the statute of limitations defense. An affidavit attached to the motion confirmed Marco had no notice of institution of the action until service of process occurred on January 9,1999. This was approximately two weeks after the statute of limitations had expired.

The district court granted summary judgment. Although it disagreed with the outcome, the district court felt compelled to dismiss the action under Iowa Rule of Civil Procedure 69(e). The trial court held the amendment to add the real party in interest could not relate back to the date of the original petition because the language of rule 69(e) required Marco to receive notice of the lawsuit prior to the expiration of the two-year statute of limitations.

The legal representatives appealed, and we transferred the case to the court of appeals. The court of appeals affirmed the district court. The legal representatives then sought further review. They claim the district court and court of appeals improperly applied the notice requirement of rule 69(e). They assert notice was timely because the original notice and petition was served on Marco within the time permitted for service of process.

II. Scope of Review.

We review a district court ruling on a motion for summary judgment for the correction of errors at law. Iowa R.App. P. 4; Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 362 (Iowa 2000). In doing so, we are guided by the same principles utilized by the district court. Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984). We examine the record to determine the existence of a genuine issue of material fact and determine if the law was correctly applied. Anderson v. Miller, 559 N.W.2d 29, 31 (Iowa 1997). We apply the same test the district court should have used. General Ceramics Inc. v. Firemen’s Fund Ins. Cos., 66 F.3d 647, 651 (3d Cir.1995).

III. Relation Back Doctrine.

The disposition of a civil action in Iowa is governed by the rules of civil procedure. These rules include provisions governing pleadings. The primary purpose of the rules of pleading is to provide notice and to facilitate a fair and just decision on the merits of the case. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 86 (1957). Conversely, pleading rules do not exist to allow a mistake in a pleading to determine the outcome of a case. Id.; Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 230, 9 L.Ed.2d 222, 225 (1962) (it is contrary to the spirit of the rules for a decision on the merits to be avoided on the basis of technicalities). Thus, our rules of procedure provide that amendments to pleadings should be freely allowed when it is just to do so. Iowa R. Civ. P. 69(d); see Ackerman v. Lauver, 242 N.W.2d 342, 345 (Iowa 1976) (“Amendments are the rule and denials [are] the exception”).

Notwithstanding, pleadings that are amended after the period provided for the commencement of an action has expired under a statute of limitations can present special problems if the amendment is deemed to relate back to the date of the original pleading. Statutes of limitations establish a reasonable period of time for plaintiffs to file their claims. This limitation period essentially exists to ensure a defendant will receive timely notice of a potential claim so that the defendant will be protected from the multitude of problems that can occur when defending stale claims. See State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985). These problems include diminished memories of witnesses, disappearance of witnesses, and lost evidence. Schulte v. Wageman, 465 N.W.2d 285, 286 (Iowa 1991). Thus, an amendment that adds new parties or claims after the period of limitations has expired can offend the policies underlying the statute of limitations because the ability to conduct a defense on the merits can be undermined by the late notice of the need to prepare a defense. Accordingly, although amendments should be freely granted to promote a trial on the merits, an amendment must not relate back to the date of the original pleading if it would offend the policies underlying the statute of limitations. United States v. Koch Indus., Inc., 188 F.R.D. 617, 628 (N.D.Okla.1999). Conversely, if the amendment does not offend the policies of the statute of limitations, it should relate back to the original pleading “to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors.... ” Fed.R.Civ.P. 15 advisory committee’s note (1991).

Our rules of civil procedure consider the competing interests that can clash when pleadings are amended after the statute of limitations has expired. See Iowa R. Civ. P. 69(e). To balance these interests, rule 69(e) applies two separate tests to determine if an amendment to a pleading will relate back. The first test applies to amendments that add claims. If a pleading is amended to add a claim, the amendment will be deemed to relate back to the date of the original pleading when the claim in the amendment “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading....” Id. The second test applies to amendments that add parties and is comprised of four prongs. See Porter v. Good Eavespouting, 505 N.W.2d 178, 181 (Iowa 1993); 3 James Wm. Moore et al., Moore’s Federal Practice § 15.19[3][a], at 15-85 (Matthew Bender 3d ed.2000) [hereinafter Moore]. First, the same relation back test for amendments that add claims is considered. Porter, 505 N.W.2d at 181. Second, a party against whom a claim is asserted must receive such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits. Id. Third, the party against whom the claim is asserted must know or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. Id. Finally, the second and third factors must occur within the period provided by law for commencing the action against the party. Id.

The relation back doctrine is also found in the Federal Rules of Civil Procedure and existed as a common law principle. See Clif J. Shapiro, Note, Amendments That Add Plaintiffs Under Federal Rule of Civil Procedure 15(c), 50 Geo. Wash. L.Rev. 671, 673 (1982). Similarly, the doctrine was recognized in Iowa prior to the adoption of our rules of civil procedure. See Schofield v. White, 250 Iowa 571, 583, 95 N.W.2d 40, 46-47 (1959). The federal rule applies the same test as the Iowa rule, but now employs a different time period in which notice of the institution of the action and knowledge of the mistake must occur. Under federal rule 15(c), these conditions must occur “within the [time] provided ... for service of the summons and complaint.” Fed.R.Civ.P. 15(c). By contrast, under rule 69(e), these conditions must occur “within the period provided by law for commencing the action against the party.” Iowa R. Civ. P. 69(e).

That portion of rule 69(e) pertaining to notice of the institution of the action prior to expiration of the period of time for commencing the action applies by its language only to “the party against whom a claim is asserted.” See id. Thus, when the relation back rule is applied to amendments that add a defendant, we strictly adhere to the clear language of the rule and have refused to extend the notice period beyond the time for commencing the action. See Porter, 505 N.W.2d at 181-82; Grant v. Cedar Falls Oil Co., 480 N.W.2d 863, 865-66 (Iowa 1992). The consequence of our adherence to the clear language of the rule means that the notice requirement may not be extended by the time provided under rule 49(f) to accomplish service of process following the filing of the petition. Butler v. Woodbury County, 547 N.W.2d 17, 20 (Iowa App.1996); see Grant, 480 N.W.2d at 865-66. Moreover, we have refused to extend the time period for notice even though the effect of the literal application of the notice language of rule 69(e) is to give newly named defendants the right to receive notice within the statute of limitations, while a properly named defendant has no similar right to be served within the statute of limitations. See Grant, 480 N.W.2d at 865; see also Butler, 547 N.W.2d at 20; 3 Moore, § 15.19[3][e], at 15-93. Nevertheless, in accepting this anomaly in Grant, we followed the rationale adopted in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), when the Court was faced with the identical issue under federal rule 15(c), the federal counterpart to our relation back rule:

We do not have before us a choice between a “liberal” approach towards Rule 15(c), on one hand, and a “technical” interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says.

Grant, 480 N.W.2d at 866 (quoting Schiavone, 477 U.S. at 30, 106 S.Ct. at 2384-85, 91 L.Ed.2d at 28).

In Porter, we also observed the arbitrary element of the strict-notice requirement, but acknowledged the observation in Schiavone that it was “an arbitrariness imposed by the legislature and not by the judicial process.” Porter, 505 N.W.2d at 181 (quoting Schiavone, 477 U.S. at 31, 106 S.Ct. at 2385, 91 L.Ed.2d at 29). Notwithstanding, this dual-notice standard imposed by rule 69(e) may be justified by a variety of policy considerations, and we do not question the wisdom of the legislature in enacting the rule. See Peter A. Zorn, Rule 15(c) and the Relation Back of Corrected Party Names, 73 N.C.L.Rev. 2189, 2203-04 (1995).

Although the notice requirement of rule 69(e) is expressly applicable to “an amendment changing the party against whom a claim is asserted,” we have followed the advisory committee note to federal rule 15 and extended rule 69(e) to amendments that change plaintiffs. Ezzone v. Riccardi, 525 N.W.2d 388, 399 (Iowa 1994); M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., 318 N.W.2d 408, 411 (Iowa 1982); see Fed. R.Civ.P. 15(c) advisory committee’s note (1991). Thus, the issue we now face is whether the same requirement that notice be received prior to the expiration of the statute of limitations, which is expressly applicable to amendments to change the “party against whom the claim is asserted,” is implicitly applicable when the rule is applied to amendments that change plaintiffs. If the same notice standard applies, the amendment in this case cannot relate back, and the district court properly granted summary judgment.

In first recognizing that our relation back rule is also applicable to amendments to change or add plaintiffs, we said:

If the amendment is made to substitute plaintiffs and the correct defendant is already in the case, the rule also requires that within the period of the statute of limitations the defendant had received sufficient notice of the action to avoid prejudice in maintaining a defense.

M-Z Enters., 318 N.W.2d at 411. We reiterated this position in Ezzone when we said that when rule 69(e) is applied to add plaintiffs, “[t]he only requirement is that the named defendants have received sufficient notice of the action during the statute of limitation period.” Ezzone, 525 N.W.2d at 399-400.

Although a literal application of these pronouncements supports the decision of the district court and the court of appeals to grant dismissal in this case, we were not literally applying the language of the relation back rule in articulating the pronouncements. Instead, we were extending the relation back rule by analogy to amendments that change plaintiffs, and our focus was to ensure such extension would not disrupt the requirement for the defendant to receive fair notice of the action within the statute of limitations period or would not alter the underlying claim to the prejudice of the defendant. M-Z Enters., 318 N.W.2d at 411. We did not consider the issue presented in this case and did not make a broad pronouncement that the notice requirement of rule 69(e) applied in the same manner to all amendments.

Our primary authority for relying on rule 69(e) to determine if amendments to change plaintiffs should relate back to the original pleading was derived from the advisory committee’s notes to federal rale 15. See id. These notes recognized, as we have in our decisions, that the relation back rale does not expressly apply to amendments changing plaintiffs. See Ezzone, 525 N.W.2d at 399; M-Z Enters., 318 N.W.2d at 411. Instead, it is the “attitude” of the rule towards amendments changing defendants that “extends by analogy to amendments changing plaintiffs.” Fed.R.Civ.P. 15 advisory committee’s note (1966). Thus, the comments to federal rule 15 make it clear that it is the policy behind the rule that should be applied to amendments changing plaintiffs, not the specific requirements of the rule. Koch, 188 F.R.D. at 628. When a rule is applied by analogy, we seek to apply the concept supporting the rule and are not constrained to follow the specific language. Thus, we must return to consider the policies of the relation back doctrine to resolve the issue in this case.

As we have discussed, the chief purpose of the notice requirement of the relation back rule is to ensure that any amendment to a pleading made after the statute of limitations has expired does not cause the type of prejudice to the defendant sought to be avoided by the statute of limitations. See M-Z Enters., 318 N.W.2d at 411 (rule requires defendant to receive sufficient notice before statute of limitations expires). At the same time, it is important to remember that the relation back rule must not be applied to permit a statute of limitations defense to be based on “inconsequential pleading errors.” Fed.R.Civ.P. 15 advisory committee’s note (1991). Thus, these concepts, not the explicit language of the rule, must prevail when the relation back rule is applied to amendments changing plaintiffs.

Generally, • fewer problems are encountered when the relation back doctrine is applied to amendments changing plaintiffs than when applied to amendments changing defendants. Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir.1997); Fed.R.Civ.P. 15 advisory committee’s note (1966). This is particularly true when the amendment, as in this case, asserts the same claim as set forth in the petition by the original plaintiff. The reason can be found in the source of the notice requirement under the statute of limitations doctrine.

A petition is the document that serves to notify the defendant of the claim for the purposes of the statute of limitations. Thus, when the original petition is filed within the statute of limitations period, the defendant is given all the notice required by the statute of limitations. See Stoppelman v. Owens, 580 F.Supp. 944, 946-47 (D.D.C.1983); Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L.Rev. 356, 410-11 (1967) (relation back for correcting plaintiffs creates less serious problems than relation back for correcting defendants because defendants receive timely notice of the action when the amendment changes plaintiffs). Any subsequent amendment to substitute a plaintiff or correct the name of a plaintiff after the statute of limitations period would not normally defeat the purpose of the statute of limitations as long as the amendment does not assert new facts or issues on which the action is based. Advanced Magnetics, 106 F.3d at 19; Metro. Paving Co. v. Int’l Union of Operating Eng’rs, 439 F.2d 300, 306 (10th Cir.1971). In addition, no prejudice normally results to a defendant when, as in this case, the defendant fails to receive notice of the original action until service of process occurs after the statute of limitations has expired. The statute of limitations is tolled by the filing of an action, and the notice received by the defendant by the later service of process is the same notice the defendant would have received if there had been no mistake in naming the plaintiff. See Iowa Rs. Civ. P. 48(a) (“a civil action is commenced by filing a petition”); 49(f) (notice informing a defendant that an action has been filed is required to be served upon the defendant within ninety days). Thus, the failure to receive notice within the statute of limitations cannot constitute the type of prejudice protected under the statute of limitations.

This lack of prejudice in amendments changing plaintiffs is also recognized in Iowa Rule of Civil Procedure 2. Like the relation back doctrine, rule 2 establishes a lenient approach for the substitution of the real party in interest as a plaintiff after an objection has been lodged by the defendant. See 4 Moore, § 17.12[l][b], at 17-61-17-62 (the amendments to federal rule 17, the counterpart to Iowa rule 2, prescribe a lenient approach for substituting as the plaintiff the real party in interest after the defendant’s objection). The rule specifically provides that a mistake in the name of a party is to be corrected by ratification, joinder, or substitution of the real party in interest, not dismissal. Iowa R. Civ. P. 2. Moreover, the ratification, joinder, or substitution is given the same effect as if the action had been originally commenced in the name of the real party. Id.; see Advanced Magnetics, 106 F.3d at 20 (court should permit substitution of plaintiffs when amendment does not alter the facts of the original petition); Rose Hall, Ltd. v. Chase Manhattan Overseas Banking Corp., 93 F.R.D. 858, 867-68 (D.Del.1982) (court will not dismiss case for lack of a real party in interest if amendment is made within a “reasonable time”). Like the relation back doctrine, rule 2 recognizes the lack of prejudice to a defendant when an amendment is made to correctly identify the plaintiff.

The notice required under the relation back doctrine relates to notice that is sufficient to permit a defendant to prepare a defense to an action on the merits. When an amendment to a pleading only changes the identity of a misnamed plaintiff, the relation back doctrine is not concerned with whether the notice of the change occurred within the statute of limitations because the original petition filed within the statute of limitations has already provided the defendant with the type of notice sought under the limitations statute. See Koch, 188 F.R.D. at 627-29; Shapiro, 50 Geo. Wash. L.Rev. at 678-80. Thus, prejudice would not normally result by permitting the amendment to relate back. See Russell v. New Amsterdam Cas. Co., 303 F.2d 674, 680-81 (8th Cir.1962) (amendment in wrongful death action brought in plaintiffs own name instead of the name of the legal representative of the deceased did not introduce a new cause of action but was the same action alleged in the original petition and related back to the original petition).

We conclude an amendment that substitutes a new plaintiff for the original plaintiff or adds a new plaintiff under rule 2 relates back to the original petition under our analogous application of rule 69(e) when there is no accompanying change in the claims asserted against the defendant and the defendant is unable to show prejudice of the type sought to be avoided by the governing statute of limitations. Although prejudice would not normally occur in such situations, the defendant should be given an opportunity to show prejudice in the event that notice of the misnamed party adversely impacted the policy considerations of the statute of limitations.

This approach is both compatible with rule 2 and the purpose behind the relation back doctrine under rule 69(e). Additionally, it is compatible with our general approach under our rules of civil procedure to freely allow amendments and to allow for trials on the merits. Finally, it is consistent with our approach to the relation back doctrine at common law.

Our holding is limited to amendments to substitute or add plaintiffs when the underlying claim remains unchanged. Amendments that add claims along with new plaintiffs would require an additional analysis consistent with the purpose of rule 69(e) as well as the language of the rule. See Shapiro, 50 Geo. Wash. L.Rev. at 680 (“amendments that add plaintiffs with additional claims require a more rigorous analysis,” because “there is a greater likelihood that the defendant will be prejudiced”).

IV. Conclusion.

The district court improperly applied the notice requirement of rule 69(e) to an amendment to add a plaintiff. Under the correct legal standard, the amendment relates back to the time the original petition was filed. Moreover, Marco alleges no claim of prejudice of the type protected by the statute of limitations, and we can find no such prejudice from the undisputed facts. Accordingly, summary judgment was improperly granted. We reverse the decision of the trial court and remand the case for further proceedings.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED AND REMANDED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.

      . There are other policy considerations underlying the statute of limitations. They include freeing the defendant from the worry produced by the fear of litigation, removing the burden of stale claims from the courts, and removing the uncertainty of unsettled claims from the marketplace. See Note, Federal Rule of Civil Procedure 15(c): Relation Back of Amendments, 57 Minn. L.Rev. 83, 84-85 (1972).

      . Iowa Rule of Civil Procedure 69(e) provides as follows:
      Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
      (Emphasis added).

      . In response to a host of criticism. Congress amended federal rule 15 in 1991 to require notice to the new defendant within the time period for service of process. See 3 Moore, § 15.19[3][e], at 15-93; see generally Robert D. Brussack, Outrageous Fortune: The Case for Amending Rule 15(c) Again, 61 S. Cal. L.Rev. 671 (1988) (criticizing federal rule 15 and requesting revision by Congress); Joseph P. Bauer, Schiavone: An Un-Fortune-ate II-lustration of the Supreme Court’s Role as Interpreter of the Federal Rules of Civil Procedure, 63 Notre Dame L.Rev. 720 (1988) (same). This amendment effectively overruled the result of Schiavone, but does not impact our cases because our Iowa legislature has not amended our rule. See Butler v. Woodbury County, 547 N.W.2d 17, 20-21 (Iowa App.1996).

      . For example, the petition in this case notified Marco he was being sued for injuries suffered by Dorothy Kuhns as a result of their automobile accident at a specific time and place. The petition further described the various theories of recovery, including the specifications of negligence, and detailed the type of damages allegedly sustained. See Iowa R.Civ. P. 69; Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 871 (Iowa 1984) ("a petition is sufficient if it apprises the [defendant] of the incident from which the claim arose and the general nature of the action”).


author: TERNUS, Justice.

text:
    CARGILL, INC., Appellee, v. Kevin CONLEY, Appellant.
    No. 99-0461.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Thomas J. Currie of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
    Mark A. Woollums and Jean Dickson Feeney of Betty, Neuman & McMahon, L.L.P., Davenport, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   TERNUS, Justice.

The appellant, Kevin Conley, suffered a back injury arising out of and in the course of his employment by the appellee, Cargill, Inc. He filed this workers’ compensation action and was awarded permanent partial disability benefits based on a twenty-percent industrial disability. On judicial review in the district court, the award was reversed because the court determined that the commissioner had considered an improper factor in making her award, namely, the employer’s discriminatory refusal to allow^ the employee to bid into other jobs upon his return to work.

On appeal, the employee challenges this decision on two bases: (1) the alleged error upon which the district court based its reversal was not raised before the commissioner and, therefore, error was not preserved; and (2) the commissioner’s consideration of Cargill’s refusal to place Conley in certain positions was not improper. Cargill argues that the district court decision was correct and that, in any event, there was insufficient evidence to support the commissioner’s finding of a twenty-percent industrial disability.

We find that error was not preserved on the question of whether the commissioner considered an improper factor in evaluating Conley’s industrial disability. We also reject Cargill’s contention that the commissioner’s decision is not supported by substantial evidence. Accordingly, we reverse the decision of the district court and remand for entry of an order affirming the agency decision.

I. Background Fads and Proceedings.

From 1990 through the time of hearing, Conley was employed by Cargill at its corn milling facility. He had worked in several different positions, but they all required repetitive lifting, bending and stooping in varying degrees. During this period, Conley sustained three back injuries that the parties agree were work related. The first time that Conley injured his back he received conservative treatment and was eventually able to return to his regular job without modification. After the second injury it was thought that he had a probable disc herniation, but he was again treated conservatively and released to return to work. Initially, Cargill was reluctant to return Conley to his normal position due to the risk of reinjury. But after Conley filed a grievance, he was allowed to return to his previous job as a starch loader.

Within a few months of his return to his former position, Conley reinjured his back. This time the doctors confirmed a large herniated disc and performed back surgery. Conley returned to work three weeks later, but to a position other than the one he occupied at the time of his most recent injury. Cargill disqualified him from bidding into certain jobs at the plant based on medical restrictions, even though Conley contended that he was fully capable of performing the requirements of those positions.

Conley filed this workers’ compensation action seeking benefits for all three back injuries. He also filed a lawsuit in federal court under the Americans with Disabilities Act, claiming that Cargill had engaged in discriminatory practices by the “demotion and selective promotion of Mr. Conley, a qualified individual with a disability, who is able to perform the essential functions of his position with or without reasonable accommodation because of his disability [in] retaliation for filing workers’ compensation and/or grievance claims.” The ADA case was unresolved at the time of the workers’ compensation hearing.

There was conflicting evidence at the hearing as to the amount of disability Conley suffered as a result of his back injuries. The parties’ expert medical witnesses agreed that Conley had a functional impairment of seven to eight percent of the whole body. They disagreed on the impact of this impairment. Contrary to the normal positions of the employer and claimant in such cases, Cargill argued that Conley was restricted in lifting, stooping, and bending, a contention that Conley disputed. Both parties introduced medical testimony supporting their positions on this issue. Cargill’s medical witnesses gave the opinion that Conley was precluded from doing jobs that required lifting over fifty pounds or repetitive bending and twisting; Conley’s experts testified that he could return to work with no restrictions.

Conley testified that he was capable of performing the jobs from which he had been disqualified if given the opportunity. He also testified that these positions have a higher base pay and more overtime. Conley acknowledged that overtime is made available on the basis of seniority and his seniority was approximately 71 out of 100. He also acknowledged that he already worked about sixty hours a week. Nevertheless, Conley believed that his current annual income of $40,000 to $45,000 could be as high as $60,000 in one of the jobs from which he was disqualified.

In his ruling, the deputy concluded that Conley had not sustained any permanent disability as a result of the first two injuries to his back. These conclusions have not been challenged on appeal.

As for the third back injury, the deputy found that it caused a permanent disability. In determining the amount of industrial disability suffered by Conley, the deputy considered the factors set out in McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). The deputy found that Conley had permanent restrictions imposed by his treating physicians “of no lifting more than 50 pounds and no repetitive lifting, bending or twisting.” He also noted there was other evidence that Conley could perform many jobs in the plant that required lifting, bending and twisting above these restrictions. “However,” the deputy stated, “[Cargill] is preventing [Conley] from being eligible for such jobs which could result in [Conley] receiving higher earnings.” After considering these factors, including Conley’s age, education and prior work experience, the deputy found that Conley had sustained a twenty-percent industrial disability. Conley was awarded permanent partial disability benefits on this basis. The industrial commissioner affirmed the deputy’s decision.

On judicial review, the district court ruled that the deputy “could not consider as a basis or factor in determining industrial disability anything that is specifically part of Conley’s discrimination claim.” The court stated that the deputy had wrongly considered “Cargill’s prevention of Conley’s eligibility based on medical restrictions for certain jobs” because this same conduct was the basis for Conley’s discrimination claim. In view of the deputy’s consideration of this factor, the court remanded the case to the industrial commissioner for an evaluation of Conley’s industrial disability without consideration of “the employer’s denial of certain positions to the employee based on medical restrictions.”

Conley appealed the district court’s decision and on appeal alleges that the court erred in ruling that the commissioner could not consider Cargill’s conduct in denying Conley certain positions on the basis of his medical restrictions. Conley also contends that Cargill did not preserve this issue for review. Cargill asserts that the district court’s ruling was correct, noting that this court has stated that an employer’s “refusal to give any sort of work to a claimant after he suffers his affliction may justify an award of disability.” McSpadden, 288 N.W.2d at 192. Cargill contends alternatively that, even if the district court was correct in holding that the agency considered an improper factor, the district court should be affirmed on the basis that there is not substantial evidence to support the agency’s finding of twenty-percent industrial disability. See generally In re Estate of Voss, 553 N.W.2d 878, 879 n. 1 (Iowa 1996) (stating that court may affirm “on any basis appearing in the record and urged by the prevailing party”).

II. Scope of Review.

Iowa’s Administrative Procedure Act, Iowa Code chapter 17A (1999), governs our review of workers’ compensation cases. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). Therefore, we review for correction of errors of law. See Koehler Elec. v. Wills, 608 N.W.2d 1, 3 (Iowa 2000). Applying the standards of Iowa Code section 17A.19(8), we determine whether our legal conclusions are the same as those reached by the district court. See Manpower Temp. Servs. v. Sioson, 529 N.W.2d 259, 262 (Iowa 1995). See generally Iowa Code § 17A.19(8) (allowing court to reverse agency if agency decision is affected by an error of law or is not supported by substantial evidence). If our conclusions are the same, we affirm; if we disagree with the conclusions of the district court, we must reverse. See Bearce v. FMC Corp., 465 N.W.2d 531, 534 (Iowa 1991).

The factual findings of the commissioner are binding if supported by substantial evidence. See Sioson, 529 N.W.2d at 262.

Evidence is substantial if a reasonable person would find it adequate for reaching a conclusion, even though a reviewing court might reach a contrary inference. The mere possibility that the record might support another conclusion does not permit the reviewing court to make a finding inconsistent with the agency finding so long as there is substantial evidence to support it.

Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 830 (Iowa 1992).

III. Was Error Preserved on the Commissioner’s Consideration of the Employer’s Refusal to Allow the Employee to Bid into Other Jobs as a Factor in Assessing the Employee’s Industrial Disability ?

It has long been the law in Iowa that claims not raised before the industrial commissioner will not be considered by the courts on judicial review. See Klein v. Furnas Elec. Co., 384 N.W.2d 370, 375 (Iowa 1986); McSpadden, 288 N.W.2d at 184; Paveglio v. Firestone Tire & Rubber Co., 167 N.W.2d 636, 639 (Iowa 1969). Cargill claims that it raised this issue in its attorney’s opening remarks to the deputy prior to the hearing. In the opening statements made at the hearing, the parties’ attorneys pointed out to the deputy that this case was unusual in that the employee was arguing that he was not as restricted in his ability to work as the employer claimed. The parties alerted the deputy to the fact that there was a disability discrimination claim pending in federal court. In the context of this discussion, Cargill's attorney stated,

I do also think, though, however, the evidence is going to show that there is a pending claim in United States District Court involving Mr. Conley for a disability discrimination claim, and it’s our opinion, and I don’t know if the agency’s ruled on this or not, I think they have, that the agency is not vested with jurisdiction to determine discrimination questions. So it is a unique case. I mean, we’ve got parallel cases going on basically surrounding the same sets [sic] of facts, so I would like to alert Your Honor to that.

(Emphasis added.)

This statement was Cargill’s only reference at the hearing to the discrimination claim. Moreover, Cargill did not mention the discrimination claim or its impact on the workers’ compensation action in its appeal to the industrial commissioner. (Cargill simply argued that Conley had “not established by a preponderance of the evidence that he sustained an industrial disability equal to twenty-percent of the body as a whole.”) Of overriding significance is the fact that at no time in the proceedings at the agency level did Cargill argue that the agency could not consider Cargill’s restriction of Conley’s job opportunities on the issue of industrial disability. We do not think Cargill’s fleeting reference to the limited jurisdiction of the industrial commissioner served to alert the deputy to the claim made on judicial review that the employer’s conduct was an improper factor to consider in assessing Conley’s industrial disability.

Cargill argues alternatively that this issue is one of subject matter jurisdiction and, therefore, it may be raised at any time. “Subject matter jurisdiction is the authority of a court to hear and determine cases of the general class to which the proceedings belong, not merely the particular case then occupying the court’s attention.” Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). Once the issue is raised, the court must determine whether it has jurisdiction, regardless of how or when the issue is presented. See id. at 337-38; cf. Shirley v. Pothast, 508 N.W.2d 712, 715 (Iowa 1993) (“Challenges to the subject matter jurisdiction of the district court can be raised at any time during the course of the proceedings.”).

The problem with Cargill’s argument is that the industrial commissioner did have subject matter jurisdiction of the claim presented to her — a claim for workers’ compensation benefits. See Shirley, 508 N.W.2d at 715. The fact that the agency may have considered an improper factor in determining industrial disability does not change the fundamental nature of the claim it was adjudicating.

This case is unlike the factual situation presented in Ottumwa Housing Authority v. State Farm Fire & Casualty Co., 495 N.W.2d 723 (Iowa 1993), a case upon which Cargill relies. In Ottumwa Housing, this court held that the employees’ claims of sexual harassment were not cognizable under the workers’ compensation statute, but rather the employees had civil claims for sexual discrimination under state and federal law. 495 N.W.2d at 729. The distinguishing feature in Ottumwa Housing is that the alleged injury sustained by the employees was directly caused by the employer’s discriminatory conduct; this injury and its cause were the same in the workers’ compensation proceeding and in the civil suits. In contrast, in the present case, Conley potentially has viable claims for both workers’ compensation benefits and civil damages. See 2A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 68.34(e), at 13-261 (1994) (discussing problem of overlapping claims and suggesting that “a claimant may have a workers’ compensation remedy for so much of his injury as the compensation act was designed to cover, and still have his typical civil rights remedies for any other injuries or losses stemming from the employment discrimination”). His claim for statutory benefits arises from his back injury; his claim for civil damages arises from the employer’s allegedly discriminatory conduct. Although there may very well be an overlap between these two claims that might affect the determination of industrial disability in the workers’ compensation action, this overlap is not a problem of subject matter jurisdiction.

In summary, Conley had a legitimate claim for workers’ compensation benefits, independent of the employer’s allegedly discriminatory actions. The industrial commissioner had subject matter jurisdiction of this claim. The issue of how industrial disability should be assessed when the employer is alleged to have denied the employee job opportunities for discriminatory reasons is a separate and distinct question. Therefore, it was imperative that the employer raise this issue in the agency proceedings in order to preserve the issue for judicial review. Having failed to do so, we will not consider the matter on appeal.

IV. Was the Industrial Commissioner’s Award of Permanent Partial Disability Benefits Supported by Substantial Evidence ?

We now consider the employer’s alternative argument that the industrial commissioner’s finding of a twenty-percent industrial disability is not supported by substantial evidence in the record. As noted earlier, the industrial commissioner’s findings of fact are binding on us if supported by substantial evidence. See Sio-son, 529 N.W.2d at 262. In viewing the record, “we consider only evidence favorable to the [agency’s] findings, whether or not contradicted.” Second Injury Fund v. Hodgins, 461 N.W.2d 454, 456 (Iowa 1990).

Here, the evidence shows that Conley was a thirty-four year old high school graduate whose employment had historically been in the areas of construction and maintenance. The record also reveals that these jobs generally require lifting, bending, and twisting of a repetitive nature. It was undisputed that Conley’s back injury resulted in a functional impairment of seven to eight percent. The agency’s finding that Conley was subject to permanent restrictions on the type of jobs he could perform was supported by expert testimony that Conley should not lift more than fifty pounds and should not engage in frequent bending or twisting. Although Conley was earning a slightly higher rate of pay after his injury than he was earning at the time of his injury, there was also evidence that his earnings would be substantially higher if he could have performed the jobs from which he was disqualified by his medical restrictions.

With respect to the evidence of potential earnings in other positions, Car-gill complains that Conley was allowed to testify, over Cargill’s hearsay objection, to what other employees were earning in other jobs at the plant. Cargill does not assign the admission of this evidence as error on appeal; it only asks that we not consider Conley’s testimony in judging the sufficiency of the evidence. Initially, we note that “[s]trict rules of evidence are not to be applied in proceedings before the industrial commissioner.” Morrison v. Century Eng’g, 434 N.W.2d 874, 877 (Iowa 1989). Additionally, the hearsay information to which Conley testified was certainly within the knowledge of Cargill, Cargill being the entity paying the workers in question. Therefore, witnesses and documents to impeach Conley’s testimony were readily available to Cargill and could have been submitted in evidence. See generally Hamer v. Iowa Civ. Rights Comm’n, 472 N.W.2d 259, 262 (Iowa 1991) (“When relevant evidence is within the control of a party whose interest is affected, a court may infer that the evidence, if not produced, would be unfavorable to that party.”). Under these circumstances, we think it is appropriate to consider Conley’s testimony in assessing the evidence.

Cargill also argues that Conley’s job restrictions resulted not from his inability to do the jobs, but from an agreement between Conley and Cargill that predated Conley’s third back injury. This purported agreement was evidenced by an internal Cargill memo prepared after the settlement' of Conley’s grievance that arose after his second back injury. In this memo, Cargill states that Conley could return to his previous job, but that if he sustained another back injury, Cargill “may place [him] on a medically restricted job.” This memo was not signed by Conley and Conley disputed that he had agreed to job restrictions at Cargill’s discretion should he suffer a third back injury. The deputy did not mention this agreement in his findings. Therefore, consistent with our rule that we interpret the agency’s findings broadly so as to support its decision, see Hodgins, 461 N.W.2d at 455, we conclude that the agency did not find that Conley had voluntarily agreed to these restrictions. Because there is substantial evidence in the record to support a finding that Conley did not agree to future job limitations, we disregard this argument in assessing the evidentiary support for the agency’s decision.

We hold that there was substantial evidence to support the commissioner’s decision that Conley had a twenty-percent industrial disability. Therefore, we reverse the decision of the district court that reversed the commissioner’s award of permanent partial disability benefits and remand to the court for entry of an order affirming the commissioner’s decision.

REVERSED AND REMANDED.

McGIVERIN, S.J., participates in place of NEUMAN, J., who takes no part.

      . Cargill also relies on our decision in Baird v. Ottumwa Community School District, 551 N.W.2d 874 (Iowa 1996). Baird is distinguishable for the same reasons that Ottumwa Housing is inapposite.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. David D. BRADFORD, Appellant.
    No. 99-0065.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Zorica Uic of the Sporer Law Firm, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and John Standafer and Douglas Eichholz, Assistant County Attorneys, for appellee.
   LARSON, Justice.

David Bradford was convicted of possession of marijuana in violation of Iowa Code section 124.401(5) (1997). He appealed, and the court of appeals reversed on the ground evidence used against him had been illegally seized. We granted the State’s application for further review and now vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

This case was tried to the bench on stipulated facts. The parties agreed that the witnesses listed in the minutes of testimony would testify substantially in conformance with their minutes of testimony. The minutes incorporated by reference the reports made by the officers in connection with the case.

An officer of the Waterloo Police Department was called to the residence of Alice Moore at approximately 2 a.m. January 29, 1998, because she had received threatening phone calls from a person named Antonyo Reese. Reese had come to her house about 7:30 p.m. the night before and threatened to kill her and her children. After leaving her home that evening Reese had called fifteen times with similar threats.

While the officer was taking Moore’s statement in his squad car, another person in the house waved to him, indicating another harassing phone call. The officer entered the house and picked up a receiver. He heard the caller, later identified as Phillip Woodyard, say he was on his way over to the house, and “I’m going to cap your ass.” Approximately fifteen minutes after the officer left the Moore residence, she called again. Moore told officers that she had seen four or five males in her front yard, that they were threatening her, and that she had seen one of them with a gun. When officers arrived, they saw four males, including the defendant, running from the front of the house and attempting to get into a car parked in the alley behind the Moore residence. Officers drew then-weapons to detain the men while they were patted down and handcuffed.

Officers, who continued to look for a fifth person, saw him behind the garage.. He was handcuffed and identified as Anto-nyo Reese. One of the other individuals was identified as Nicholas (a/k/a Phillip) Woodyard. Officers then searched the area because Moore had said she had seen a man with a gun. No gun was found. During the search, Moore identified the individuals, including Bradford, as the ones she had seen in her yard. The officers attempted to identify the individuals by name at the scene, but some of them did not have identifications, and the officers believed not all the men were giving then-true names. In fact, it turned out that one individual did give a false name. The individuals did not know, or would not give, their dates of birth or social security numbers, and their stories conflicted with the witnesses’ stories.

The subjects were placed in separate squad cars while still handcuffed. The defendant and the others had been at the scene approximately forty-five minutes to an hour when they were transported to the police station for further investigation. They were patted down again for weapons at the station prior to being placed in holding cells. During this second pat down an officer found a marijuana pipe with marijuana residue in the front jeans pocket of the defendant — the evidence that is at the heart of this case. Bradford was arrested; everyone else was released.

Bradford was charged with possession of marijuana. Reese and Woodyard were charged with assault and perhaps harassment as well, although the record is unclear on this point. A fourth suspect was charged with interference for providing a false name to the investigating officers. Bradford moved to suppress the evidence found in the search at the police station on the ground the search exceeded a permissible pat down for weapons. The trial court denied the motion.

Bradford was tried to the bench and convicted. He appealed, claiming that (1) the officers exceeded the bounds of an investigatory stop by transporting him to the police station and (2) officers had no probable cause to arrest him.

II. Grounds for the Search.

Searches and seizures conducted without a warrant are per se unreasonable unless they fall within one of the exceptions to the Fourth Amendment’s warrant requirement. State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). The State has the burden to prove by a preponderance of the evidence that a warrantless search falls within one of the exceptions. Id. One such exception is an investigatory “Terry ” stop.

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment....

Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). Bradford argues that the officers exceeded the bounds of an investigatory stop when they held him “for the long period that they did” and transported him to the police station.

Officers, by exceeding the scope of an investigatory stop, transform the stop into an arrest, which must then be supported by probable cause. See Centanni v. Eight Unknown Officers, 15 F.3d 587, 590-91 (6th Cir.1994); see also Peterson v. City of Plymouth, 945 F.2d 1416, 1419 (8th Cir.1991).

The fact that the Officers never formally arrested [the suspect] does not resolve the issue of whether her detention required probable cause. The-Fourth Amendment’s protections are not limited to “traditional” arrests; indeed, “[a] clear deprivation of liberty caused by law enforcement officers without formal words is nonetheless an arrest.” Thus, “at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments.” To be sure, no bright-line test exists for making this determination. But it is clear that the line between an investigatory detention and an arrest is crossed “when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.”

Centanni, 15 F.3d at 590 (alterations in original) (citations omitted).

Here, the officers detained Bradford at the scene for almost an hour, handcuffed him, and placed him in a patrol car, then transported him to the police station. This clearly exceeded the permissible bounds of an investigatory stop. As the court said in Centanni, “the removal of a suspect from the scene of the stop generally marks the point at which the Fourth Amendment demands probable cause.” Id. at 591. In such a case there is no such thing as a “Terry transportation.” Id.

When the officers exceeded the bounds of the investigatory stop, the stop was transformed into an arrest, which required probable cause. Id. at 590. Bradford concedes the initial investigatory stop was legal under Te'rry. He argues, however, that a two-hour detention and a trip to the police station changed that. He contends that, when the police went beyond the initial investigatory stop, the search that followed was ipso facto illegal. He relies on the case of State v. Lathum, 380 N.W.2d 743 (Iowa Ct.App.1985), which said:

The police officers, however, exceeded the bounds of an investigatory stop once they transported the suspects to the scene of the crime and later to the police station. At that point in the investigation, police procedures were so intrusive that the full panoply of fourth amendment rights was triggered. In essence, in order to legally transport Lathum to the burglary scene, the officers needed either probable cause to arrest or Lat-hum’s consent.

Lathum, 380 N.W.2d at 745 (citations omitted). Lathum must be distinguished. There, the State did not attempt to show probable cause, and the court observed “there is little, if any, evidence that probable cause existed.” Id. The case therefore turned solely on whether the defendant had consented to go to the crime scene and later to the police station. The court found Lathum had not consented, and because probable cause was not established, it reversed the conviction. Id. at 745-46.

We believe it is clear that, despite the lack of a formal arrest, Bradford was arrested for Fourth Amendment purposes when the bounds for a Terry stop were exceeded. When he was found at the scene, officers immediately drew their guns and covered him while one 'of the officers patted him down. He was placed on the ground while he was being patted down and handcuffed, placed in a squad car, and later taken to .a holding cell at the police station. He was detained over two hours in all. Under these circumstances, we believe he was clearly .arrested. See State v. Delockroy, 559 N.W.2d 43, 46 (Iowa Ct.App.1996).

In Delockroy the defendant was removed from her home late at night in handcuffs and placed in the back of a police vehicle. She was transported to the sheriffs office where she was placed in a room, alone, for a considerable amount of time. The court of appeals said that, “[ujnder these circumstances, a reasonable person would believe an arrest had taken place.”

The court explained:

Although the officers never specifically informed Delockroy she was under arrest, that information was conveyed to her by the circumstances of the evening. The totality of the circumstances reveal the encounter between the officers and Delockroy was too intrusive, as a matter of law, to be anything but an arrest.

Id.

In the district court, Bradford did not argue a lack of probable cause; he argued only that the poststop search by the officers became so intrusive and lengthy that the search could not be justified under Terry. The district court, in its oral ruling (incorporated into a brief written ruling), did not expressly mention probable cause as a basis for upholding the search. However, the court made it clear the search did not rise or fall under Terry. The court discussed the necessity of investigating beyond the pat-down stage, and discussed the reasonableness of the custodial search. The ruling stated in part:

I think the taking of the defendant and his party to the police station for further investigation and identification was appropriate. That investigation, then, removes it from the Minnesota-v.-Dickerson [Terry pat-down] situation, because we don’t have a pat-down, plain-feel situation as in Dickerson. We have a search. And I mean, in my view, once the party is taken to the police department for a legitimate purpose, then the officers have the right and obligation to conduct a search.
... So I find that the search of the defendant at the police station, that yielded the pipe, was not an unreasonable search.... [T]he Fourth Amendment talks about unreasonable search and seizure, so the first test is were the circumstances unreasonable, and I find they were not.

On the defendant’s appeal, he argued his theory that the police had exceeded the bounds of a permissible Terry stop and also that the officers lacked probable cause. The State met these arguments by asserting that the officers did not exceed a proper Terry stop, and further, they had probable cause for the search in any event.

The State argues officers had probable cause to arrest Bradford for trespassing, harassment, and going armed with intent.

To be valid, a warrantless arrest must be supported by probable cause. Probable cause exists when the facts and circumstances within the arresting officer’s knowledge would warrant a person of reasonable caution to believe that an offense is being committed.
... “[T]he facts must rise above mere suspicion but need not be strong enough to sustain a guilty conviction. All of the evidence available to the arresting officer may be considered, regardless of whether or not each component would support a finding of probable cause by itself. Seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing.”

State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997) (quoting State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992)).

The question is whether the officers had probable cause to arrest Bradford for harassment. Under the statute, harassment is committed if a person “purposefully and without legitimate purpose” has “personal contact” with another person with the intent to threaten, intimidate, or alarm that person. Iowa Code § 708.7(l)(b). Personal contact does not require physical touching or oral communication but merely an encounter in which two people are in visible proximity to one another. Id. Even though there is no indication Bradford himself made threatening calls or had a weapon, he was found with a group that included persons who had made death threats. Bradford and his group were found at 2 a.m. in the yard of a person to whom threats had been made, within fifteen minutes of the latest death threat. They were in close and visual proximity to the occupants of the house. There was also evidence someone in the group had a gun. They attempted to flee from the scene when the officers approached.

The foregoing facts show probable cause to believe Bradford was at least aiding and abetting in the threats directed to persons inside the Moore home even though, of course, he was ultimately charged with a different offense-possession of marijuana. Because we hold there was probable cause for the arrest, the subsequent search was justified. We vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.


author: VAITHESWARAN, J.

text:
    In the Interest of S.J. and K.J., Minor Children, R.W., Father of S.J., Appellant.
    No. 00-83.
    Court of Appeals of Iowa.
    Oct. 25, 2000.

      Stephen B. Jackson and Stephen B. Jackson, Jr. of Jackson Law Office, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Lance Heeren, Assistant County Attorney, for appellee State.
    Barbara A. Connolly, Cedar Rapids, guardian ad litem.
    Heard by SACKETT, C.J., and STREIT and VAITHE SWARAN, JJ; but decided en banc.
   VAITHESWARAN, J.

The juvenile court terminated Roy’s rights to parent Shiron. On appeal, Roy contends: (1) the Department of Human Services did not afford him reasonable reunification services and (2) the evidence was insufficient to establish Shiron could not be returned to his custody. We affirm.

I.Background Facts and Proceedings

Shiron was born to Roy and Crisea on April 2, 1996. Approximately four months after his birth, Roy was jailed on a drug charge and was ultimately convicted and imprisoned.

Crisea subsequently gave birth to another child. When cocaine was discovered in this child’s system, the State instituted child in need of assistance proceedings. Crisea did not cooperate with the Department of Human Services following commencement of these proceedings. At the end of the year, she went to Mississippi, leaving Shiron in her mother’s care at a home that was the site of illicit drug activity-

The State applied to remove Shiron from the home based on: (1) his mother’s noncooperation; (2) his mother’s absence from the State; (3) his younger half-sister’s birth with cocaine in her system; and (4) the drug activity in the home. The juvenile court granted the application and, in early 1999, Shiron was placed in foster care where he remained throughout the proceedings. Roy, who remained in prison, stipulated to an adjudication of Shiron as a child in need of assistance.

In August 1999, the State moved to terminate the parental rights of Roy and Crisea as to Shiron. Several weeks before the termination hearing, Roy was released to a half-way house. He attended and participated in the hearing. The juvenile court terminated his rights to parent Shiron. This appeal followed.

II. Standard of Review

We review termination cases de novo. In re J.L.W., 570 N.W.2d 778, 780 (Iowa App.1997). The State must show grounds for termination of a parent’s rights by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa App.1997).

III. Reasonable Services

Roy first maintains the department did not make reasonable efforts to reunite him with Shiron. The State responds: (1) Roy did not preserve error on this issue by timely requesting services and (2) Roy’s incarceration made him unavailable to receive services.

We disagree with the State on its error preservation claim. Roy completed and returned a social history worksheet sent by the department shortly after the child in need of assistance petition was filed. Although he did not expressly request reunification services, he asked what was going on with his son and requested that his son be placed in a clean, drug-free home. He also wrote, “[i]f my son well been [sic] is not proper I would like for him to place with my old [sic] daughter Selene ...” We conclude Roy’s correspondence with the department was essentially a request for services. Accordingly, we reject the State’s error preservation claim and proceed to the merits.

The State concedes it did not afford Roy reasonable reunification services as statutorily mandated. See Iowa Code section 232.99(3), 232.102(9) (1997). However, citing our holding in In re E.K., 568 N.W.2d 829, 831 (Iowa App.1997), the State maintains Roy’s incarceration rendered him unavailable to receive such services. We do not read In re E.K as broadly as the State does. Although we agree a parent’s imprisonment may create difficulties in providing reunification services, we are not convinced imprisonment absolves the department of its statutory mandate to provide reunification services under all circumstances. Instead, we conclude the department must assess the nature of its reasonable efforts obligation based on the circumstances of each case. See In re C.B., 611 N.W.2d 489, 493 (Iowa 2000) (noting State must show reasonable efforts as a part of its ultimate proof the child cannot be safely returned to care of parent); In re L.M.W., 518 N.W.2d 804, 807 n. 1 (Iowa App.1994) (noting reasonable efforts mandate requires agency to make reasonable efforts to prevent placement or to reunify families in each case) (emphasis in original); Iowa Code § 232.102(12) (1999) (court may waive reasonable efforts requirement under certain circumstances only with written findings of fact based on evidence in record).

The services required to be supplied an incarcerated parent, as with any other parent, are only those that are reasonable under the circumstances. In determining what services are reasonable under the circumstances, the department may wish to consider some or all of the following factors, among others, if applicable: the age of the children, the bonding the children have or do not have with their parent, including any existing clinical or other recommendations concerning visitation, the nature of parenting deficiencies, the physical location of the child and the parent, the limitations of the place of confinement, the services available in the prison setting, the nature of the offense, and the length of the parent’s sentence. The department has an obligation to make a record concerning its consideration of this issue.

The department here provided no reunification services until one month before the termination hearing, when it allowed Roy to have supervised visits with his son and made arrangements for Roy to attend child-development and parenting classes. We nevertheless conclude these services satisfied its statutory mandate. Before the department initiated services, Roy was imprisoned at a distant facility, rendering any provision of reunification services infeasible. When he was transferred closer to his son and sought services, the department immediately provided them. Roy complains, however, that the department did not give him a chance to demonstrate these services were working, but elected instead to proceed with its termination application. The department’s worker addressed this concern:

Q: What’s so important about [Shi-ron’s] need for permanency that we would forego giving the father another eight months to get out of the [half-way house] and establish a home for himself and the child and get involved in substance abuse treatment he may or may not need?
A: I would say based on the history of his incarcerations. [Shiron] has a need for consistency and to be worked with, someone to help him reach his potential, given his limited ability.
Q: How would you weigh the risk, or probability that [Roy] in another eight months might be able to be considered as a placement option for [Shiron], weighing that against the harm of [Shi-ron] in having to wait that long?
A: I would say based on his history, again it’s far more important for [Shi-ron] to have that stability and permanency.

As will be discussed further below, we cannot conclude the department’s decision to forgo further reunification services amounted to a violation of its statutory mandate.

IV. Sufficiency of Evidence

The juvenile court terminated Roy’s parental rights under Iowa Code section 232.116(l)(g). Roy maintains the evidence is insufficient to support the fourth prong of that provision which requires the State to prove the child cannot be returned to a parent’s custody. He maintains he complied with all the department’s requirements set forth in its case permanency plans, was substance-free, parented five children, and was scheduled to take parenting classes to learn how to address Shiron’s special needs. We agree with Roy that he took steps to facilitate reunification with his son. On his own initiative, he participated in prison programs designed to address his substance abuse problems. He also made arrangements to participate in child-development and parenting classes and began visitation with Shiron upon his release to the halfway house. These laudable efforts, however, came too late. See In re C.B., 611 N.W.2d at 495.

Roy was imprisoned for all but four months of Shiron’s young life and for portions of the lives of his other five children. He had no contact with Shiron until shortly before the termination hearing. By then, the required removal time set forth in Iowa Code section 232.116(l)(g)(3) had elapsed. See In re C.B., 611 N.W.2d at 494 (citing Iowa Code § 232.116(l)(e), (g) and noting the needs of a child are promoted by termination of a parent’s rights if parent has not had contact with the child for the time limits specified by statute). There was no chance of immediate reunification, as Roy was still incarcerated.

There was also little chance of imminent reunification. Roy himself acknowledged at the termination hearing that although his three supervised visits with Shiron were successful, he had not yet had unsupervised visits or overnight stays with his son. Additionally, while Roy was scheduled to be paroled three months after the termination hearing, a treatment coordinator at the half-way house testified he would need transitional time after his release to adjust before taking on full time child care responsibilities. The department’s worker echoed this sentiment, stating it would take at least six months from the time Roy was released from the halfway house to be in a position to assume care of Shiron. We have repeatedly stated that patience with parents should be limited to avoid intolerable hardship to the child. See, e.g., In re A.Y.H., 508 N.W.2d 92, 96 (Iowa App.1993). This is such a case.

Finally, we note Roy’s positive steps toward rehabilitation did not eliminate his past. While a once unfit parent may not automatically be deemed unfit, a parent may not wipe the slate clean merely by professing a desire to do so. In re D.J.R., 454 N.W.2d 838, 845 (Iowa 1990). We have considered a parent’s arrests and incarcerations in determining whether return of a child to a parent would result in harm. See In re D.P., 465 N.W.2d 313, 315 (Iowa App.1990). Here, the juvenile court stated:

While all are hopeful that [Roy] will remain crime and drug free, his past is probably a better predictor of the future than his promises in court. On his first felony offense, his parole was twice revoked for substance abuse problems. After he discharged that sentence, he was convicted of two counts of Delivery of Crack Cocaine. Even his counselor [Allen], while hopeful of [Roy’s] recovery and intentions, testified there is no guarantee he is going to make it this time.... [Roy] is fifty years old and has just now come to the realization that drugs and crime have ruined his life. [Shiron] is too young to have to wait any longer for his father.

We agree with and adopt these findings as our own. We affirm the juvenile court’s termination of Roy’s rights to parent Shi-ron.

AFFIRMED.

      . The State also moved to terminate the rights of Crisea and another father as to one of Shiron’s half-sisters.

      . The court also terminated Crisca’s parental rights vis-a-vis Shiron and his half-sister and terminated the rights of his half-sister’s father. Neither of them have appealed.

      . That provision authorizes termination if:
      g. The court finds that all of the following have occurred:
      (1) The child is three years of age or younger.
      (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
      (3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
      (4)There is clear and convincing evidence that the child cannot be returned to the custody of the child's parents as provided in section 232.102 at the present time.