Opinion
No. 3-726 / 02-1623.
Filed December 10, 2003.
Appeal from the Iowa District Court for Allamakee County, James L. Beeghly, Judge.
Defendant appeals the district court's order to strike its resistance to a motion for summary judgment and the court's subsequent grant of summary judgment. AFFIRMED.
Terry Parsons of Olsen Parsons, Cedar Falls and Charles Kelly, Postville, for appellant.
Larry Cohrt of Roberts, Cohrt, Stevens Lekar, P.L.C., Waterloo, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Agri Processors, Inc. appeals the district court's order to strike its resistance to a motion for summary judgment and the court's subsequent grant of summary judgment. We affirm.
Background Facts. In November 1997, Agri Processors, Inc. ("Agri Processors"), a kosher meat processor, orally contracted with AAA Electric, L.C. ("AAA") for the performance of electrical work at its processing plant in Postville, Iowa. On April 25, 2002, AAA Electric filed a petition alleging non-payment on an open account. On July 18, AAA filed a motion requesting summary judgment on the balance due and hearing was subsequently set for September 9. Agri Processors filed its resistance to summary judgment on September 6. At hearing, AAA moved to strike the resistance, brief in support of resistance, and supporting affidavit of Agri Processors as untimely. The district court so granted. The case was submitted after arguments of counsel. The district court found that AAA had proven through affidavit that Agri Processors owed it $272,015.17 plus interest for services and materials. The district court further found there was no genuine issue of material fact to deny entry of judgment in favor of AAA. Agri Processors appeals.
The petition also alleged fraud on the part of Agri Processors but that claim was not included in the summary judgment motion or this appeal.
Scope of Review. Our review of the district court's grant of a motion to strike is for abuse of discretion. Thies v. James, 184 N.W.2d 708, 710 (Iowa 1971). Summary judgment rulings are reviewed for correction of errors at law. Iowa R. App. P. 6.4; General Car Truck Leasing Sys., Inc. v. Lane Waterman, 557 N.W.2d 274, 276 (Iowa 1996). Where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Iowa R. Civ. P. 1.981(3); City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996).
Discussion. Agri Processors argues the district court erred in striking its resistance to summary judgment, brief, and supporting affidavit as untimely. Iowa Rule of Civil Procedure 1.981(3) provides, "[a]ny party resisting the motion [for summary judgment] shall file a resistance within 15 days, unless otherwise ordered by the court, from the time when a copy of the motion has been served." Iowa R. Civ. P. 1.981(3). The rule also provides that the brief and affidavits in support of the resistance and a statement of disputed facts, if any, must be filed with the resistance. Iowa R. Civ. P. 1.981(3). Agri Processors filed its resistance on September 5, forty-nine days after AAA filed its motion for summary judgment on July 18. AAA did not physically receive a copy of the resistance by mail until the morning of hearing. Because of the very late filed resistance by Agri Processors, we do not find the district court abused its discretion by striking the resistance, brief, and supporting affidavits.
When considering a motion for summary judgment, the court reviews the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. City of West Branch, 546 N.W.2d at 600. All facts are viewed in the light most favorable to the party opposing the motion for summary judgment. Bearshield v. John Morrell Co., 570 N.W.2d 915, 917 (Iowa 1997). However, a party resisting a summary judgment may not simply rely upon the pleadings, but must "set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered." Iowa R. Civ. P. 1.981(5). The district court based its ruling for summary judgment on the record before it and found no genuine issue of material fact. Agri Processors, as the adverse party, retained the burden to provide facts showing a genuine issue for trial. Iowa R. Civ. P. 1.981(5); see Khan v. Heritage Prop. Mgmt., 584 N.W.2d 725, 730 (Iowa Ct. App. 1998). Agri Processors failed to meet this burden, therefore the district court did not err in granting the motion for summary judgment.