Chrischilles v. Griswold

• Decision Date: 04 April 1967
• Docket Number: No. 52274,52274
• Citation: 150 N.W.2d 94,260 Iowa 453
• Parties: John R. CHRISCHILLES, Appellant, v. David J. GRISWOLD, Appellee.
• Court: Iowa Supreme Court

Page 94

150 N.W.2d 94

260 Iowa 453

John R. CHRISCHILLES, Appellant, v. David J. GRISWOLD, Appellee.

No. 52274.

Supreme Court of Iowa.

April 4, 1967.

McMahon & Cassel, Algona, for appellant.

Shumway, Kelly & Fristedt, Algona, Vennum, Newhall, Ackman & Goetz, Minneapolis, Minn., and Alan Loth, Fort Dodge, for appellee.

MASON, Justice.

John R. Chrischilles, a resident of Iowa, filed his petition at law to recover damages allegedly sustained as the result of improper and negligent design and specifications furnished by defendant David J. Griswold, an architect registered to practice in Iowa although a resident of Minnesota.

From the petition it appears that on March 3, 1959, plaintiff and defendant executed a contract at Algona in connection with the construction of plaintiff's new home in Kossuth County. Under the written agreement defendant was to provide architectural services including the design and detailing of the new residence to be constructed. Construction of the residence was completed in accordance with the plans and specifications provided by defendant in the fall of 1960. In December 1964 plaintiff became aware of water dripping through the ceiling of the home. Investigation revealed the water was the result of condensation in the roof area and the deck boards on the roof were rotten because of excessive moisture. Defendant was notified and submitted a sketch of specifications in an effort to remedy the situation. Plaintiff claims his damages were the direct result of improper and negligent design and specifications prepared by defendant who refused to repair the damages.

Service of original notice was made under section 617.3, Code, 1966. An original notice was served on defendant by filing a copy thereof September 16, 1965, with the Iowa secretary of state. September 17 notice of such filing with the secretary with an original notice and copy of petition attached were mailed by registered mail to defendant at his Minneapolis address. November 12, 1965, defendant filed his special appearance, alleging the court had no jurisdiction over him under this section; that this statute was unconstitutional if applied retroactively prior to July 4, 1963, its effective date. No contention is made that plaintiff did not follow the provisions of the Code. The trial court sustained the special appearance and plaintiff appeals.

I. The question presented is whether the Iowa court has jurisdiction of Griswold under section 617.3. This section as amended by the Sixtieth General Assembly, Chapter 325, section 1, and as now appearing in the 1966 Code, provides in part:

'If a nonresident person makes a contract with a resident of Iowa to be performed in whole or in part by either party in Iowa, or if such person commits a tort in whole or in part in Iowa against a resident of Iowa, such acts shall be deemed to be doing business in Iowa by such person for the purpose of service of process or original notice on such person under this section, and shall be deemed to constitute the appointment of the Secretary of State of the State of Iowa to be the true and lawful attorney of such person upon whom may be served all lawful process or original notice in actions or proceedings arising from or growing out of such contract or tort. * * * The making of the contract or the committing of the tort shall be deemed to be the agreement of such * * * person that any process or original notice so served shall be of the same legal force and effect as if served personally upon such Defendant within the State of Iowa.'

The trial court held this statute affects substantive rights and therefore operates prospectively only.

As previously observed, this is a law action. Our appellate jurisdiction is confined to the correction of errors. Rule 344(a)(3), Rules of Civil Procedure, requires a statement of errors relied on for reversal when the appeal presents questions of law rather than a statement of propositions relied on as required when the appeal is triable de novo. Associates Discount Corp. v. Held, 255 Iowa 680, 683, 123 N.W.2d 869, 871.

We treat what plaintiff has designated as proposition relied on for reversal as assignment of error. It is the court's ruling sustaining defendant's special appearance.

Defendant in his special appearance contends the court has not obtained jurisdiction because this section cannot be applied retroactively to contracts made and performed prior to its effective date, July 4, 1963.

Plaintiff contends the statute is purely procedural and remedial; that his cause of action arose subsequent to the effective date of this statute and therefore retroactive application is not necessary; one who registers under Iowa law to practice architecture within the state and proceeds to do so is subject to Iowa jurisdiction.

II. In plaintiff's first contention he asserts the statute neither enlarged nor impaired substantive rights or obligations; that it did nothing more than merely provide plaintiff with an Iowa forum to obtain redress for his already existing substantive rights.

The same contention was made in Krueger v. Rheem Manufacturing Company, Iowa, 149 N.W.2d 142 argued before us the same term as this case. There the trial court also held section 617.3 operated prospectively only and sustained defendant's special appearance. We affirmed in an opinion filed March 7, 1967, rejecting appellants' contention. Ordinarily we would end our discussion of this contention with this statement, but the parties and counsel here have a right to know how the majority arrived at its conclusion. Therefore, we quote from the Krueger opinion:

'Whether a statute operates retrospectively or prospectively is a matter of legislative intent. Within constitutional limits, the legislature may be clear and express language state its intention. Manilla Community School District v. Halverson, 251 Iowa 496 (501), 101 N.W.2d 705, 708.

'* * *

"As a rule all statutes are to be construed as prospective in operation unless the contrary is expressed or clearly implied. The rule is subject to an exception where the statute relates solely to remedies or procedure' (citing cases).

'Plaintiffs claim section 617.3 is solely procedural. Defendants argue it affects substantive rights. Both parties cite many authorities in support of their respective positions. In most instances, however, the apparent conflict is resolved when the type of service called for in the statutes is taken into consideration. Cases involving 'long arm' statutes which provide for service of notice on the defendant by personal service outside the state or by registered or certified mail have generally been held to be remedial only (citing cases).

'The decision are based on the theory expressed in McGee v. International Life Ins. Co., supra (355 U.S. 220, 224, loc. cit. 226--227, 78 S.Ct. 199, loc. cit. 201--202, 2 L.Ed.2d 223), in which the court said such statute was: 'remedial, in the purest sense of that term, and neither enlarged nor impaired respondent's substantive rights or obligations * * *. It did nothing more than to provide petitioner with a California forum to enforce whatever substantive rights she might have against respondent. At the same time respondent was given a reasonable time to appear and defend on the merits after being notified of the suit. Under such circumstances it had no vested right not to be sued in California.'

'In the same case the U.S. Supreme Court, p. 225, 78 S.Ct. p. 200, pointed out that: 'In a continuing process of evolution this Court accepted and then abandoned 'consent,' 'doing business,' and 'presence' as the standard for measuring the extent of state judicial power over' nonresident corporations before arriving at the 'minimum contacts' concept of due process annunciated in International Shoe Co. v. (State of) Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057.

'However, some state legislatures have not abandoned the 'consent' concept in their 'long arm' statutes, but have provided that by doing certain acts in the state, the nonresident consents to a state official serving as his process agent and the statutes provide for substituted service on the designated official to obtain jurisdiction of nonresident defendants. Cases involving 'long arm' statutes which provide for substituted service have almost invariably held such statutes to affect substantive rights and to operate prospectively only (citing cases).

'* * *

'* * * (T)he fact that such statute (wholly procedural) could be enacted does not aid plaintiff here. '* * * the extent to which a state chooses to exercise jurisdiction over a foreign corporation (or a nonresident person) 'is a matter for the law of the state as made by its legislature' * * *. Also, 'It is a legislature, not judicial, function to extent or enlarge jurisdiction over foreign corporations (or a nonresident person).' (citing cases)'. Hill v. Electronics Corp. of America, supra, (253 Iowa 581, 589, 113 N.W.2d 313) loc.cit. 318. See also Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427, 430.

'We must look to the statute which the legislature has seen fit to enact. It chose to adopt a substituted service statute.

'* * *

'For the reasons stated we hold section 617.3 operates prospectively only * * *.' Thus construed, Chrischilles did not obtain jurisdiction of Griswold if required to rely solely on a contract theory.

However, plaintiff argues in support of his second contention that his cause of action did not arise until December 1964 when the damage due to negligent design first appeared, contending defendant's negligence, as stated in plaintiff's petition, gives rise to an action in tort rather than contract.

It appears to be well settled in Iowa that where a contract imposes a duty upon a person, the neglect of that duty is a tort, and an action ex delicto will lie. 'A tort may be dependent upon, or independent of, contract. If a...