Opinion
No. 5-513 / 04-0611
Filed August 17, 2005
Appeal from the Iowa District Court for Tama County, David M. Remley, Judge.
Plaintiff appeals the dismissal of his petition. AFFIRMED.
R. Eugene Knopf of Walker, Knopf Billingsley, Newton, for appellant.
Richard J. Sapp and John T. Clenendin of Nyemaster, Goode, Voights, West, Hansell O'Brien, P.C., Des Moines, for appellee Funks Ciba Geigy.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
After years of inaction in the District Court, the Iowa Supreme Court affirmed the automatic dismissal of a tort petition filed by Brian Wilimek. Wilimek v. Danker, 671 N.W.2d 25 (Iowa 2003) (" Wilimek I").
While Wilimek I was pending on appeal, Wilimek filed a second petition in district court. This petition was identical in all material respects to the first one. One of the defendants, Funks-Ciba Geigy, Inc., moved either for dismissal or for a stay of the second petition. The court granted a stay pending resolution of Wilimek I. After Wilimek I was decided, Ciba Geigy moved to lift the stay and renewed its motion to dismiss the petition. The court granted the motion. The court stated:
The original action was dismissed for the reason that Plaintiff failed to comply with an order of court which required that the case be tried on or before December 31, 2000 "or said cause will stand dismissed." In Central Construction Co. v. Klingensmith, [ 256 Iowa 364, 369], 127 N.W.2d 654, 657 (1964), the Iowa Supreme Court held that the negligence in prosecution of an action is surely inherent when the plaintiff is lacking in diligence and so suffers a dismissal; in the words of [Iowa Code] section 614.10 [(2001)], when he `fails therein.'" Plaintiff's first action failed as a result of negligence in its prosecution. Therefore, section 614.10 does not apply to the new action and Plaintiff's claims are barred by section 614.1(2), The Code.
Finding no error in this ruling, we affirm.