Opinion
No. 2-498 / 01-1776.
Filed July 3, 2002.
Appeal from the Iowa District Court for Scott County, GARY D. McKENRICK, Judge.
Plaintiffs appeal from the order dismissing their personal injury action for failure to make timely service of original notice. AFFIRMED.
Harold Dane and Steven Berger of Wehr, Berger, Lane Stevens, Davenport, for appellant.
George Goebel of Gosma, Gallagher Goebel, Davenport, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Patricia and Brian Smith filed a petition against Jason Kohrt on November 29, 2000, based on injuries allegedly sustained in a December 14, 1998 automobile accident. Counsel for the Smiths employed a private process server, Michael Sheley, to serve original notice on Kohrt. Once in November and twice in December, Sheley attempted to serve Kohrt at a home in Port Byron, Illinios; however, no one answered the door. On December 27, 2000, Sheley attempted to serve Kohrt at a mobile home in Port Byron, but was informed he no longer lived there. Sheley again attempted to serve Kohrt at his father's home in Geneseo, Illinois. Kohrt's father informed Sheley his son had moved to Silvis to an unknown address.
On March 26, a new attorney entered an appearance on the Smiths' behalf and filed an application for extension of time for service. The court granted the request and entered an order extending the time for service to April 13, 2001. On April 2, 2001, the new counsel attempted non-resident motorist service through the Iowa Department of Transportation, pursuant to Iowa Code sections 321.498 and 321.501 (2001).
Kohrt subsequently filed a motion to dismiss, contending service of original notice was not timely pursuant to Iowa Rule of Civil Procedure 1.302(6) . The court granted the motion, concluding the Smiths failed to establish good cause for their failure to serve original notice within ninety days of filing the petition. The Smiths appeal.
Formerly Iowa Rule of Civil Procedure 49(f). The rule provides the court shall dismiss the action if service of the original notice is not made within ninety days after the petition is filed. However, the time for service may be extended beyond ninety days upon the showing of good cause for the delay in service.
Our review of a district court ruling on a motion to dismiss for failure to serve in a timely manner an original notice pursuant to rule 1.302(6) is for correction of errors at law. Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000). When, as here, the district court has made findings of fact, they are binding on appeal unless unsupported by substantial evidence. Id.
We conclude substantial evidence supports the district court's finding of inadequate justification for the delay in service. A delay of service of original notice for more than ninety days after filing the petition is presumptively abusive. Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002). Service here took place 127 days following the filing of the petition. Substantial evidence supports the district court's finding that no attempts at service were made from mid-January 2001 until April 2, 2001, when long-arm service was finally attempted.
Furthermore, Carroll v. Martir, 610 N.W.2d at 859 suggests the Smiths "had the burden to show that [they] at least tried to serve [the nonresident defendant] under the nonresident motorist statute in a reasonably short period of time after the petition was filed." In this case, no attempt was made to use the statute until well beyond ninety days after commencement of the action. We therefore affirm the district court order dismissing the action.
AFFIRMED.