Opinion
No. 04-1534.
March 16, 2005.
Appeal from the Iowa District Court for Allamakee County, John Bauercamper, Judge.
Darren Patzner appeals from the district court's grant of summary judgment in favor of Sarah Patzner. AFFIRMED.
Robert Sudmeier of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., Dubuque, for appellant.
Jeffrey Swartz of Jacobson, Bristol, Garrett Swartz, Waukon, for appellee.
Considered by Sackett, C.J., and Zimmer, J., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
The district court entered a decree dissolving the parties' marriage following respondent Sarah J. Patzner's motion for summary judgment. The petitioner, Darren J. Patzner, has appealed. We find error was not preserved on the issues raised by appellant and affirm the district court.
I. Background facts and proceedings.
Darren and Sarah were married in 1995. They have two minor children, Rhett Patzner and Molly Patzner. They separated in August 2003, Sarah moving with the children to Prairie du Chien, Wisconsin. Darren continued living in the family home in Harpers Ferry, Allamakee County, Iowa.
Sarah commenced an action in Wisconsin to compel support from Darren. Darren was ordered to pay $385 bi-weekly plus back support by the Wisconsin court. In January 2004 Darren commenced this action to dissolve the marriage in Allamakee County, Iowa. After Sarah's motion to dismiss the Iowa action on forum non conveniens grounds, resisted by Darren, was denied, the Iowa court directed both parties to attend and complete a Children In The Middle course and file financial affidavits. A hearing on temporary custody was held on April 14, 2004, again resisted by Darren, and temporary custody was placed with Sarah. The Wisconsin support order remained in effect.
Despite having commenced the dissolution action, the record indicates the temporary custody proceeding was the last time Darren personally participated in this case. Sarah completed the Children In The Middle Program and filed her financial affidavit. Darren did neither. Interrogatories were filed and served on Darren's counsel on March 26, 2004. They were never answered. Sarah moved to compel answers to the interrogatories on June 23, 2004. The motion was granted on July 7, 2004 and Darren was ordered to provide responses within twenty days. The order pointed out the potential sanctions under Iowa Rule of Civil Procedure 1.517 if Darren failed to comply. He did not provide answers.
On July 9, 2004, Darren's counsel moved to withdraw as attorney for Darren "because he has lost contact with the Petitioner or the Petitioner has failed and refused to have contact with his attorney." Sarah then propounded requests for admissions to Darren on July 14, 2004. Darren did not respond to this request. On July 19, 2004, the court granted Darren's counsel's request to withdraw.
Sarah then moved for summary judgment on July 21, 2004. The motion was supported by numerous affidavits and a statement of material facts claimed to be undisputed, as required by Iowa Rule of Civil Procedure 1.981(8). A hearing on the motion was ordered for August 23, 2004. A copy of the order was mailed to Darren at his last known address on July 26, 2004. The order advised Darren what was required by way of response to the motion. No resistance was filed by or on behalf of Darren and he did not appear for the scheduled hearing.
Since Darren did not resist the motion or appear at the hearing, the court entered a decree dissolving the marriage, dividing the marital property, and awarding joint legal custody to both Sarah and Darren with physical care with Sarah. Darren was granted visitation with the children. The decree recognized the Wisconsin support order remained effective. The decree acknowledged the supporting affidavits submitted by Sarah and that many facts asserted by Sarah were admitted by Darren by virtue of his failure to respond to the requests for admissions.
A copy of the decree was mailed to Darren. He did not file any motions under Iowa Rule of Civil Procedure 1.904(2), or in any other way challenge the decree before the district court. However, Darren timely filed this appeal.
II. Scope of review.
We review the grant or denial of a motion for summary judgment for correction of errors at law. See Coralville Hotel Assocs, L.C. v. City of Coralville, 684 N.W.2d 245, 247 (Iowa 2004) ("The proper scope of review of a case in equity resulting in summary judgment is for correction of errors of law."). Summary judgment is appropriate "when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Iowa R. Civ. P. 1.981(3). The party moving for summary judgment must show no genuine issues of material fact exist. Racing Ass'n of Central Iowa v. Fitzgerald, 648 N.W.2d 555, 557 (Iowa 2002).
III. Preservation of error.
The principle that appellate courts will not review issues that were not first presented to and decided by the district court is an elemental one. Bill Grunder's Sons Const., Inc. v. Ganzer, 686 N.W.2d 193, 197 (Iowa 2004); Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa 2003).
[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (quoting 5 Am.Jur. 2d Appellate Review § 690, at 360-61 (1995)).
Trial courts must be afforded the opportunity to avoid or correct error in judicial proceedings. Similarly, appellate courts must be provided with an adequate record in reviewing errors purportedly committed during trial. This perforce requires that counsel make timely and sufficient motions or objections upon which trial judges may rule. Absent such actions, an appellate court has nothing to review. Simply stated, counsel must take necessary measures to construct a record in order to preserve error for appellate review.
Id. (quoting Robert G. Allbee and Kasey W. Kincaid, Error Preservation in Civil Litigation: a Primer for the Iowa Practitioner, 35 Drake L. Rev. 1, 2 (1985-86)).
In this case, Darren has challenged the district court's grant of summary judgment on two grounds. First, he claims he was denied due process or that the grant of summary judgment was inequitable. Second, he contends summary judgment was not appropriate in this dissolution of marriage case and the motion failed to comply with the rules regarding summary judgment in that Sarah's affidavits asserted conclusions rather than facts. He has not questioned the district court's jurisdiction.
As our recitation of the progress of this case has shown, Darren's contentions were never brought to the attention of the district court, either before or after the entry of the decree, and thus that court never had the opportunity to consider them. Darren did not preserve error on either of the issues he now raises.
Darren contends he was not required to preserve error where the record shows Sarah was not entitled to summary judgment because her motion was deficient. It is true the movant must establish her entitlement to summary judgment notwithstanding the failure of the nonmoving party to resist the motion. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986) (holding if evidence supporting motion does not establish absence of material fact, then summary judgment not appropriate regardless of sufficiency of resistance). In the Ganzer case, in a procedural situation quite similar to ours, the court addressed this claim.
Grunder is correct that the Bank, as the party moving for summary judgment, had the burden to show the district court that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The moving party in a summary judgment proceeding is obligated to establish a right to recover on its claim. Id. Moreover, while our rules of summary judgment direct the nonmoving party to contest the entry of judgment and point out deficiencies in the claim, the failure to do so does not necessarily relieve the movant of its obligation. However, if the movant has failed to establish its claim and the court nevertheless enters judgment, the nonmovant must at least preserve error by filing a motion following entry of judgment, allowing the district court to consider the claim of deficiency.
In this case, not only did Grunder fail to file a resistance to the Bank's motion, it also remained silent when the district court allegedly erroneously entered judgment in favor of the Bank. If Grunder believed the Bank failed to show entitlement to judgment as a matter of law by failing to show the deed of trust was free from defects, it was obligated to alert the trial court by filing a motion following entry of judgment. Id.; Iowa R. Civ. P. 1.904(2); Meier [ v. Senecaut], 641 N.W.2d [532,] 537-39 [(Iowa 2002)]. Because Grunder filed no such motion, the issue is not preserved for appeal.
Bill Grunder's Sons Const., 686 N.W.2d at 197-98 (emphasis added).
Iowa courts have consistently refused to recognize a plain error rule; even issues of constitutional dimension must be preserved. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). If Darren believed the district court's grant of summary judgment was lacking in due process, or was inequitable, or in some respect failed to meet the requirements of rule 1.981, it was his obligation to see that these matters were brought to the attention of the district court, either before or after summary judgment was entered, and to secure a ruling in respect to the issues. Bill Gunder's Sons Const. 686 N.W.2d at 197-98.
IV. Conclusion.
The appellant, Darren J. Patzner, has failed to preserve error on either of the issues presented for our review. We affirm the district court.