Opinion
No. 2-656 / 01-1221
Filed September 25, 2002
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Valerie McDonald appeals a denial of her request to reinstate her petition against Aaron Sanders and Sanders Funeral Chapel, Inc. AFFIRMED.
Kurt R. Leistikow of Rickert Leistikow, P.C., Reinbeck, and Robert W. Thompson of Thompson Law Office, Reinbeck, for appellant.
John R. Walker, Jr. of Beecher, Field, Walker, Morris, Hoffman Johnson, P.C., Waterloo, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
On January 1, 2001, Valerie McDonald's petition against Aaron Sanders and Sanders Funeral Chapel, Inc. was dismissed pursuant to Iowa Rule of Civil Procedure 1.944, for want of prosecution. Nearly six months later, McDonald sought reinstatement of her case, claiming both of her attorneys — Robert Thompson and Kurt Leistikow — had only recently discovered the matter had been dismissed, as they had not received either the January 2001 dismissal or the July 2000 pre-dismissal notice.
Formerly Iowa R. Civ. P. 215.1.
At hearing Thompson stated he was not alleging the clerk of court failed to mail the documents, but that he did not recall receiving them and had no record of them in his file. The court file did contain a copy of the notice sent to Thompson, and Thompson stipulated the clerk would testify a notice had been sent to him. The file did not contain copies of a notice to either Leistikow or opposing counsel, John Walker, although Walker produced his copy of the notice. Leistikow offered nothing beyond his assertion he had not received the notice or dismissal, and that a thorough review of his files failed to uncover either document. The district court found the notice was mailed to counsel. Noting the last pre-dismissal action by counsel occurred on April 18, 2000, the district court denied reinstatement. McDonald appeals.
We reject McDonald's contention that the dismissal was void as a copy of the notice was not sent to Leistikow, as co-counsel. See Erickson by Erickson v. Salama, 379 N.W.2d 904, 906-07 (Iowa 1986) (finding a dismissal void where it was undisputed that notice was not served on co-counsel). A clerk accomplishes service at mailing, "irrespective of nonreceipt. . . ." Liberty Mut. Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 858 (Iowa 1984). The evidence in this case is sufficient to raise a presumption of mailing to both of McDonald's attorneys, and the presumption is corroborated by Walker's receipt of the notice. See id. at 858-59. McDonald's evidence to the contrary is insubstantial. We see no error in the district court's finding that the notice had been mailed to all counsel.
Leistikow's bare denial of receipt stands in sharp contrast to the type of evidence the Iowa Supreme Court has found sufficient to rebut the presumption of notice. See Liberty Mut. Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 858 (Iowa 1984) (finding presumption rebutted where the attorney "had reviewed every pleading and item in the file" and "was `absolutely certain' no notice was received," the secretary swore she had searched a separate rule 1.944 file and found no notice for this case, and had appended her rule 1.944 index, which did not contain the case). See also State v. Williams, 445 N.W.2d 408, 411 (Iowa Ct. App. 1989) (" Liberty Mutual does not hold that mere evidence of failure to receive a piece of mail dispels the presumption of mailing. . . . Liberty Mutual found such a result based on the extraordinary mail receipt recording system employed by the party who was to receive notice.").
McDonald also argues the district court applied an incorrect legal standard in denying her reinstatement request and that the correct standard mandates reinstatement. See Iowa R. Civ. P. 1.944(6) (outlining mandatory and discretionary reinstatement). However, regardless of the legal standard articulated by the district court, reinstatement requires the plaintiff to prove reasonable diligence in preparing and pursuing the case for trial. Tiffany v. Brenton State Bank of Jefferson, 508 N.W.2d 87, 90 (Iowa Ct. App. 1993). The last pre-dismissal action by McDonald was a motion to continue, filed nearly eight months prior to the January 2001 dismissal. The continuance order, which removed the case from the trial docket, instructed McDonald's counsel to initiate a scheduling conference if settlement failed. There is no record of any attempt to initiate such a conference in the fourteen months between the continuance and the application to reinstate. This is not reasonable diligence. We see no error in the district court's ultimate decision to deny reinstatement.
AFFIRMED.