Duder v. Shanks

• Decision Date: 19 November 2004
• Docket Number: No. 03-1036.,03-1036.
• Citation: 689 N.W.2d 214
• Parties: John F. DUDER, Appellant, v. Randall J. SHANKS, Appellee.
• Court: Iowa Supreme Court

689 N.W.2d 214

John F. DUDER, Appellant, v. Randall J. SHANKS, Appellee.

No. 03-1036.

Supreme Court of Iowa.

November 19, 2004.

Theodore Boecker of Sherrets & Boecker, L.L.C., Omaha, Nebraska, for appellant.

John M. French of Peters Law Firm, P.C., Council Bluffs, for appellee.

TERNUS, Justice.

The plaintiff, John Duder, appeals an order confirming the automatic dismissal of his lawsuit against the defendant, Randall Shanks, under Iowa's uniform rule for dismissal for want of prosecution, Iowa Rule of Civil Procedure 1.944 (formerly known as rule 215.1). Duder claims he did not receive a try-or-dismiss notice, and therefore the case was not automatically dismissed under the rule. He also asserts a district court order setting the case for trial and approving the parties' stipulation to remove the case from the clerk's dismissal list effectively avoided dismissal or, alternatively, reinstated the case. Finally, he argues because the defendant's counsel stipulated to have the case removed from the dismissal list, he should be estopped from now claiming that the case has been dismissed. We, like the district court, find no merit in these arguments. Therefore, we affirm the district court judgment.

I. Background Facts and Proceedings.

In August 1998 John Duder brought suit against Randall Shanks, his former attorney, to resolve a fee dispute between them.¹ By late 2000 discovery had been completed, the court had ruled on the parties' motions for summary judgment, and the case was ready for trial. The clerk's court calendar for this case contained a notation that on July 18, 2000, a notice of dismissal under rule 1.944 was sent to the attorneys of record.

In December 2000 counsel for Duder attempted to contact Shanks' attorney to have a pretrial order entered, but did not reach defense counsel until January 2, 2001. At that time both attorneys signed a preprinted form for a pretrial order to be presented to a judge for approval. The plaintiff's counsel had added the following typewritten sentence after the preprinted heading for "Additional Provisions": "This case shall be removed from the Rule 215 dismissal list." This order, which was signed by a district court judge on January 3, 2001, provided that trial would be held on November 27, 2001.

On July 31, 2001, the defendant moved to dismiss the case based upon the contention the matter had been automatically dismissed by operation of law on January 1, 2001. The defendant asserted the parties' January 2, 2001 stipulation did not save the claim, and it was too late to have the matter reinstated because the six-month period for filing an application for reinstatement had expired. The plaintiff resisted, arguing (1) rule 1.944 does not provide for automatic dismissal; (2) the plaintiff's counsel had not received a try-or-dismiss notice or subsequent notification from the clerk that the case had been dismissed as is customary in that county; (3) the plaintiff had complied with rule 1.944 by obtaining the pretrial order setting the case for trial and removing it from the dismissal list; (4) even if the case had been automatically dismissed, defense counsel had stipulated to its reinstatement and should be bound by that stipulation; and (5) the defendant's counsel had acted in bad faith. The district court denied the defendant's motion, finding that the January 3, 2001 pretrial order had taken the case off the clerk's dismissal list, and as a result, the clerk had not sent the customary dismissal notice to the parties. The court further found the clerk and the plaintiff's attorney had both relied on the pretrial order and did not believe that any further action was required to keep the case alive. The court held the defendant was estopped to assert dismissal had occurred in view of the fact that his counsel had stipulated to removing the case from the dismissal list. Finally, the district court held that even if the case had been dismissed by operation of law, the dismissal was set aside by the stipulated pretrial order signed by the court on January 3, 2001. This court subsequently denied the defendant's application for interlocutory appeal.

On February 13, 2003, the defendant filed a renewed motion to dismiss and motion for summary judgment based upon the plaintiff's failure to try the case prior to January 1, 2001. The plaintiff again resisted, but this time the district court granted the motion to dismiss. See generally Hoefer v. Wis. Educ. Ass'n Ins. Trust, 470 N.W.2d 336, 339 (Iowa 1991) ("Iowa adheres to the general rule that a district court judge may review and change a prior interlocutory ruling of another district judge in the same case."). First, although the plaintiff had not reasserted his prior argument that his attorney had not received the try-or-dismiss notice, the court found that it was "unquestionably clear that the plaintiff was aware of the pending dismissal issue by the language of his motion filed January 2, 2001," referring to removal of the case from the dismissal list. The court then held (1) dismissal under rule 1.944 was automatic and no order from the court was necessary; (2) the plaintiff had not substantially complied with requirements for obtaining a continuance to avoid dismissal; and (3) the case was automatically dismissed on January 1, 2001. The court concluded that the filings and order of January 2 and 3, 2001 could not be deemed a reinstatement, and the clerk's failure to send a notice of dismissal was of no consequence. Finally, the court held the plaintiff could not rely on estoppel to excuse his failure to properly seek reinstatement. Because the present case had been dismissed by operation of law and no reinstatement had been sought, the district court concluded it was required to grant the motion to dismiss.

The plaintiff appeals, raising the following issues: (1) the case was not subject to dismissal because the plaintiff's counsel did not receive a try-or-dismiss notice; (2) rule 1.944 does not provide for automatic dismissal; (3) the clerk of court did not issue a dismissal notice in January 2001, as would be customary if the case had been dismissed; (4) the defendant's counsel stipulated to reinstatement in the pretrial order approved by the court and should be estopped from claiming the court had no authority to remove the case from the dismissal list; (5) the case was reinstated by the court on January 3, 2001; and (6) this court's denial of the defendant's application for interlocutory appeal from the first ruling denying dismissal constituted a determination that the initial ruling was correct.

II. Scope of Review.

A district court's ruling on a motion to dismiss is reviewed for correction of errors at law. Bartsch v. Bartsch, 636 N.W.2d 3, 5 (Iowa 2001). If the trial court has made findings of fact, those findings are binding on the reviewing court if they are supported by substantial evidence in the record. Id. The reviewing court is "not bound, however, by the trial court's application of legal principles or its conclusions of law." Id.

III. Was This Case Automatically Dismissed Under Rule 1.944?

Rule 1.944 states in pertinent part:

1.944(2) All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at any time prior to January 1 of the next succeeding year. The clerk shall prior to August 15 of each year give notice to counsel of record ... of the docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall state that such case will be for trial and subject to dismissal if not tried prior to January 1 of the next succeeding year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.

1.944(5) No continuance under this rule shall be by stipulation of parties alone but must be by order of court. Where appropriate the order of continuance shall be to a date certain.

1.944(6) The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.

Iowa R. Civ. P. 1.944. "The purpose of rule [1.944] is to promote expeditious trial of cases on the merits by clearing the docket of dead cases and assuring `the timely and diligent prosecution of those cases that should be brought to a conclusion.'" O'Brien v. Mullapudi, 405 N.W.2d 815, 816 (Iowa 1987) (citation omitted). The rule sets out the specific manner in which this policy will be accomplished. We have held its terms are positive, definite, and mandatory, and its operation is not discretionary with the court. Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963).

Rule 1.944 provides that a case not tried within the stated timeframe will be dismissed unless the plaintiff establishes "satisfactory reasons for want of prosecution" or shows "grounds for continuance." Iowa R. Civ. P. 1.944(2). The trial court has discretion to grant a continuance for just cause, but there must be a timely application for a continuance; the court has no authority to continue a matter on its own. Talbot, 255 Iowa at 340-41, 122 N.W.2d at 458. Moreover, if the case has not been continued prior to the date set for dismissal, dismissal is automatic, provided the try-or-dismiss notice required by the rule has been served on the parties. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987) (dismissal automatic); Erickson v. Salama, 379 N.W.2d 904, 906 (Iowa 1986) (service of try-or-dismiss notice a prerequisite to dismissal); Greene v. Tri-County Cmty. Sch. Dist., 315 N.W.2d...