Brubaker v. Estate of Delong

• Court: Iowa Supreme Court
• Writing for the Court: WIGGINS, Justice.
• Citation: Brubaker v. Estate of Delong, 700 N.W.2d 323 (Iowa 2005)
• Decision Date: 08 July 2005
• Docket Number: No. 04-0079.,04-0079.
• Parties: Stacy BRUBAKER, Appellant, v. The ESTATE Of Arthur DeLONG, Appellee.

700 N.W.2d 323

Stacy BRUBAKER, Appellant, v. The ESTATE Of Arthur DeLONG, Appellee.

No. 04-0079.

Supreme Court of Iowa.

July 8, 2005.

Gary Papenheim, Parkersburg, for appellant.

Gene Yagla and Henry J. Bevel, III of Yagla, McCoy & Riley, P.L.C., Waterloo, for appellee.

WIGGINS, Justice.

We must decide whether the plaintiff in a personal injury action timely served the defendant with the original notice. Because we agree with the district court that service was untimely, we vacate the decision of the court of appeals and affirm the judgment of the district court as modified.

I. Background Facts and Proceedings.

On April 11, 2001, while in separate motor vehicles, Stacy Brubaker and Arthur DeLong were involved in an auto accident in Waterloo. DeLong died on August 20, 2002. On December 19, 2002, Brubaker filed a petition against DeLong seeking damages for injuries Brubaker allegedly suffered as a result of the motor vehicle collision between her and DeLong.

On March 27, 2003, the district court filed a notice of hearing to review Brubaker's failure to obtain service within ninety days of filing the petition. After conducting a hearing, the court entered an order giving Brubaker additional time to serve the defendant. In its order the court stated, "If a return of service is not on file [when the case is reviewed on May 29], this case will be dismissed without prejudice." Brubaker did not obtain service by May 29. On May 29, the court entered a second order giving Brubaker additional time to serve the defendant. In this second order, the court again stated, "If a return of service is not on file [when the case is reviewed on June 30], this case will be dismissed without prejudice." Once again, Brubaker did not obtain service in the time allotted by the order. On July 1, the court entered a third order granting Brubaker additional time to serve the defendant and once more stated, "If a return of service is not on file [when the case is reviewed on July 31], this case will be dismissed without prejudice." By July 31, Brubaker did not obtain service over the defendant. On July 31, the court entered a fourth order granting Brubaker additional time to obtain service. The fourth order also stated, "If a return of service is not on file [when the case is reviewed on September 3], this case will be dismissed without prejudice." Brubaker still did not obtain service by September 3. Instead of dismissing the case, the district court entered a fifth order granting Brubaker additional time to serve the defendant. In the fifth order the court stated, "If a return of service is not on file [when the case is reviewed on September 18], this case will be dismissed without prejudice."

On September 17, David Roth, purporting to act as attorney for the estate of DeLong, signed an acceptance of service on behalf of the estate.¹ Brubaker filed the acceptance the same day. Based on the filing of the acceptance of service, the district court cancelled the no-service review hearing scheduled for September 18.

On October 24, the estate filed a motion under Iowa Rule of Civil Procedure 1.421. In its motion, the estate alleged: (1) the original notice did not comply with rule 1.302(2) because the clerk of court did not sign or seal the original notice; (2) service did not comply with rule 1.302(5) because it was not served within ninety days after filing the petition; and (3) service was not proper because Roth accepted service on September 17, one day before the estate was opened (September 18) and two days before attorney Roth qualified as administrator of the estate (September 19). The motion was not resisted by Brubaker.

A second acceptance of service of the original notice was obtained and filed from Roth on December 4. After Brubaker's original attorney was suspended from the practice of law for unrelated reasons, new counsel filed an appearance on December 10.

The hearing on the estate's unresisted motion took place on December 12. The district court dismissed the case. In its order, the court stated:

Subsequent to the [filing] of the petition plaintiff requested continuances five different times to secure service, the last being on September 4, 2003. The court accepts the [defendant's motion] is factual and that service was obtained prior to the estate being opened and the administrator being appointed. Furthermore, the original notice served at that time failed to comply with rule 1.302(2). Apparently, representations were made to the court that proper service had been obtained and, therefore, the matter was not dismissed as was contemplated by the court's order of September 4, 2003.

Plaintiff appealed. Our court of appeals reversed the district court decision concluding Brubaker accomplished timely service. We granted further review at the estate's request.

II. Issue.

This court must determine whether the district court properly dismissed the case because service of process was untimely.

III. Scope of Review.

Rule 1.302(5) requires the court to dismiss an action without prejudice for the untimely service of the original notice. Iowa R. Civ. P. 1.302(5). Therefore, we will consider the estate's motion as a motion to dismiss. Our review of rulings on motions to dismiss is for correction of errors at law. Rees v. City of Shenandoah, 682 N.W.2d 77, 78 (Iowa 2004). The court may consider matters outside the pleadings where, as here, certain undisputed facts arose after Brubaker filed her petition, and the issues before the court do not concern the adequacy of the petition to state a claim for relief. See Carroll v. Martir, 610 N.W.2d 850, 856 (Iowa 2000).

IV. Analysis.

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.

Iowa R. Civ. P. 1.302(5). The district court entered an order directing an alternate time for Brubaker to serve the defendant on five separate occasions.² On the day before the last extension was to expire, Brubaker obtained the first acceptance of service from Roth. The district court cancelled the no-service hearing because Brubaker filed this acceptance of service with the court. Brubaker obtained this acceptance of service one day before the probate court authorized the opening of DeLong's estate and two days before Roth qualified as the administrator.

A party must be legally capable of being sued in order to maintain an action. 59 Am.Jur.2d Parties § 51, at 460 (2002). Causes of action survive the death of a person. Iowa Code § 611.20 (2001). After the death of a person who may be liable for a tort, the legal representative of the decedent's estate has the legal capacity to be sued. Id. § 611.22. "A decedent does not have the capacity to be sued." Jacobson v. Union Story Trust & Sav. Bank, 338 N.W.2d 161, 163 (Iowa 1983). To commence an action against an estate without first filing a claim in probate, the person serves an original notice on the personal representative. Iowa Code § 633.415. On September 17, when Brubaker obtained the first acceptance of service, the probate court had not opened DeLong's estate, and Roth had not qualified as administrator. Therefore, at the time of the first acceptance of service, service was invalid. In the alternative, Brubaker argues if the first acceptance of service was defective, the second acceptance cured any defects in the original acceptance. The fallacy with Brubaker's argument is that Brubaker obtained the second acceptance of service after the time given by the court to obtain service on the defendant had expired. Even if we assume the second acceptance cured any defects in the first acceptance of service, there was no order extending the time to serve the defendant after September 18.

We apply a good cause standard to determine whether the delay in service was justified when a party obtains service more than ninety days after filing a petition or beyond the date of a court-ordered extension. Meier v. Senecaut, 641...