Opinion
No. 4-226 / 03-1563.
June 9, 2004.
Appeal from the Iowa District Court for Dickinson County, Patrick M. Carr, Judge.
Steve and Linda Davidson appeal the dismissal of their motion to enlarge time for showing good cause. AFFIRMED AND REMANDED.
James Benz of Benz Law Office, Spirit Lake, Michael Bovee of Montgomery, Barry Bovee, Spencer, and Dale Honken of Zito, Dekoter, Thole, Dawson Honken, P.L.C., Sibley, for appellants.
Michael Chozen, Spirit Lake, and Jon Martin, Arnolds Park, for appellee ROC Management Assoc., Inc.
Joseph Fitzgibbons, Estherville, for appellee D P, Inc.
James Redmond of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellee Elaine Hurst.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Steve and Linda Davidson appeal the dismissal of their motion to enlarge time for showing good cause. We affirm and remand
I. Background Facts and Proceedings.
On April 29, 2000, Steve and Linda Davidson were sitting inside Mother Nature's restaurant in Arnolds Park, Iowa, when a car driven by Elaine Hurst crashed through the wall. The Davidsons both suffered serious injuries. On April 26, 2002, just three days before the statute of limitations was to expire, the Davidsons filed a petition naming Elaine Hurst, D and P, Inc. d/b/a Mother Nature's (DP) and ROC Management Associates (ROC) as defendants. Three days later, the Davidsons filed an amended petition naming G.F. Land Partnership (G.F.) as an additional defendant. Steve and Linda Davidson were residents of Sibley, Iowa. Elaine Hurst was a resident of Kalamazoo, Michigan. DP was located at Arnolds Park, Dickinson County, Iowa. ROC and G.F. both owned real estate that was leased to and occupied by DP.
On February 12, 2003, Hurst filed a motion to dismiss, arguing dismissal was appropriate based on an abusive delay in service. The record is clear Hurst had not been served with original notice in the intervening nine and one-half months. All attempts at service had been unsuccessful. Even so, no motion to enlarge time pursuant to Iowa Rule of Civil Procedure 1.302 was filed. In addition, the record reflects no activity whatsoever was initiated by the plaintiffs' original counsel after May 15, 2002. On February 17, defendants DP, ROC, and G.F. jointly filed a motion for summary judgment. The plaintiffs did not file a resistance to either motion.
On March 17, 2003, the attorneys for all defendants were present for hearing. The plaintiffs did not appear personally or by counsel. The district court granted both motions. The court ordered as follows:
The Motion To Dismiss filed by Defendant Elaine Marie Hurst also remains unresisted today. Absent a showing of good cause, upon which the Court may enlarge the time for service, RCP [1.302(5)] requires a dismissal without prejudice. Nothing is presently before the Court suggesting the existence of such good cause. The Motion To Dismiss is good and should be sustained.
IT IS THEREFORE ORDERED that counsel, respectively, are directed to prepare and tender to the Court an appropriate order in conformity herewith for review, execution and filing.
Defendants DP, ROC, and G.F. tendered an order as directed by the district court. On March 26, 2003, the district court entered a ruling granting the defendants' motion for summary judgment and dismissing the plaintiffs' lawsuit against defendants DP, ROC, and G.F. However, defendant Hurst did not submit an order with regard to her motion to dismiss.
The Davidsons do not appeal the granting of the summary judgment motion.
On May 27, 2003, the Davidsons filed a motion to enlarge time for showing good cause. The motion contained several attachments including an affidavit from new counsel. The Davidsons claimed they were unable to serve Hurst despite their diligent efforts. They argued additional time was needed to obtain service on Hurst. Following arguments, the district court entered a calendar entry order denying the motion to enlarge. The district court concluded, in part, that even if it reopened the record and received the Davidsons' evidence purporting good cause, the court's decision would still result in the dismissal of their claim under Iowa Rule of Civil Procedure 1.302(5).
The Davidsons had secured new counsel at this time.
II. Standard of Review.
Our review of the district court's ruling is for correction of errors at law. Iowa R. App. P. 6.4. We are not bound by the district court's application of legal principles or its conclusions of law. Dennis v. Christianson, 482 N.W.2d 448, 450 (Iowa 1992).
III. Self-Executing Final Order.
The Davidsons initially argue the calendar entry order entered on March 17, 2003, was not self-executing. We agree. The language of the calendar entry order demonstrated that it was not a self-executing order. The district court directed the respective defendants to tender orders in conformity with its findings in the March 17 calendar entry order. The summary judgment defendants did so, and a formal order was entered on March 26, 2003. Hurst did not, and no formal order was entered. No ruling is final when the court intends to do something further signifying a final adjudication of the matter. In re J.J.A., 580 N.W.2d 731, 736 (Iowa 1998); In re Marriage of McCreary, 276 N.W.2d 399, 400 (Iowa 1979). Moreover, "a final judgment or decision is one that finally adjudicates the rights of parties, and it must put it beyond the power of the court which made it to place the parties in their original positions." Crowe v. De Soto Consol. Sch. Dist., 66 N.W.2d 859, 860 (Iowa 1954). The order entered on March 26, 2003, sustaining the defendants' motion for summary judgment was a final order. However, no final order has been issued as to Hurst's motion to dismiss.
IV. Motion to Enlarge Time for Showing Good Cause.
Iowa Rule of Civil Procedure 1.302(5) provides:
If service of the original notice is not made upon the defendant, respondent, or other party to be served within 90 days after filing the petition, the court, upon motion or its own initiative after notice to the party filing the petition, shall dismiss the action without prejudice as to that defendant, respondent, or other party to be served or direct an alternate time or manner of service. If the party filing the papers shows good cause for the failure of service, the court shall extend the time for service for an appropriate period.
The plaintiffs argue the district court erred in not providing them a full evidentiary hearing on their motion to enlarge time. The district court reviewed the arguments of counsel as well as the affidavit and other exhibits attached to the plaintiffs' motion. The district court concluded its ruling would be the same with or without a full evidentiary hearing. We agree. Our supreme court has determined good cause to mean:
[t]he plaintiff must have taken some affirmative action to effectuate service of process upon the defendant or have been prohibited, through no fault of his [or her] own, from taking such an affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Moreover, intentional nonservice in order to delay the development of a civil action or to allow time for additional information to be gathered prior to `activating' the lawsuit has been held to fall short of . . . good cause. . . .
Meier v. Senecaut III, 641 N.W.2d 532, 542 (Iowa 2001) (citing Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000)).
We also note the following language on the issue of presumptive delay:
Our cases on delay in completing service provide that at some point a presumption of abuse arises. At that point the defendant's burden to show prejudice (in order to justify dismissal) shifts. It then becomes the plaintiff's burden (in order to avoid dismissal) to establish justification for delay. If plaintiff fails in this burden, the action must be dismissed. This was our holding in Scieszinski v. City of Wilton, 270 N.W.2d 450, 453 (Iowa 1978) (three-month delay). We took the same view in Bean v. Midwest Battery Metal, Inc., 449 N.W.2d 353, 355-56 (Iowa 1989) (eight-month delay), and again in Dennis [ v. Christianson], 482 N.W.2d [448,] 451 [Iowa (1992)] (two-year delay). Accord Turnbull v. Horan, 522 N.W.2d 860, 861 (Iowa App. 1994) (four-month delay). A thirty-seven day delay was deemed too short a period to invoke the presumption under the facts in In re Estate of Steinberg, 443 N.W.2d 711, 714 (Iowa 1989).
Alvarez v. Meadow Lane Mall, 560 N.W.2d 588, 591 (Iowa 1997); see also Becker v. Becker, 603 N.W.2d 627, 628 (Iowa 1999).
The record reveals the Davidsons failed to comply with the ninety-day service requirement of rule 1.302(5). We conclude the delay in this case of over nine months was presumptively abusive and the Davidsons failed to then demonstrate any good cause justifying their failure to comply with the rule. We agree with the district court that a full evidentiary hearing would not change the outcome of this case.
V. Remand
We note from a technical standpoint that the plaintiffs appealed the adverse ruling on their motion to enlarge time for showing good cause. The appeal of that order has been decided above. However, we further note that a separate ruling in this case concluded the dismissal order entered on March 17, 2003 was not self-executing. We therefore conclude the instant case should be remanded to the district court for a final order of dismissal nunc pro tunc. See In re Marriage of McCreary, 276 N.W.2d at 400.