Erickson by Erickson v. Salama, 85-96
| Decision Date | 15 January 1986 |
| Docket Number | No. 85-96,85-96 |
| Citation | 379 N.W.2d 904 |
| Parties | Mindy ERICKSON, by her Mother and Next Friend, Penny A. ERICKSON; Penny A. Erickson; and Robert F. Erickson III, Appellants, v. Fouad A. SALAMA, M.D.; Fouad A. Salama, M.D., P.C.; and Foods, Inc., Appellees. |
| Court | Iowa Supreme Court |
Mark C. Smith, Mike Christensen, and H. Richard Smith and David H. Luginbill, of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, Des Moines, for appellants.
Michael Figenshaw and David L. Jenkins, of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellees Salama.
W.C. Hoffmann and Joseph S. Cortese II, of Jones, Hoffmann & Davison, Des Moines, for appellee Foods, Inc.
Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, CARTER and WOLLE, JJ.
Plaintiffs appeal from an order of the district court denying their request for reinstatement of a civil action which had been automatically dismissed pursuant to Iowa Rule of Civil Procedure 215.1, contending that the clerk of court failed to give a "try or dismiss" notice to plaintiffs' counsel of record as provided in the rule. The determinative issue is whether both of plaintiffs' attorneys of record, who were not from the same law firm, were entitled to be given or mailed a rule 215.1 notice by the clerk of court.
I. Background facts and proceedings. Plaintiffs filed this action at law on July 1, 1982, seeking damages based on birth defects suffered by plaintiff Mindy Erickson because of defendants' alleged negligence. In their petition, plaintiffs contended that the proximate cause of those injuries was ingestion of a drug by plaintiff Penny Erickson during pregnancy. The drug was allegedly prescribed by defendants Salama and marketed by defendant Foods, Inc. Defendants were represented by separate counsel.
When the petition was filed, plaintiffs also filed a demand for jury trial. Iowa R.Civ.P. 177. Both documents were signed in the following manner:
s/Mark C. Smith
MARK C. SMITH
1906 Grand Avenue
West Des Moines, IA 50265
(515) 223-1335
ATTORNEY FOR PLAINTIFFS
s/Mike Christensen
MIKE CHRISTENSEN
1906 Grand Avenue
West Des Moines, IA 50265
(515) 223-1335
The clerk of court entered the names of both Mark Smith and Mike Christensen in the docket as plaintiffs' counsel of record.
Mark Smith and Mike Christensen do not have any sort of a partnership agreement or association for the practice of law. They have identical phone numbers and addresses, but both attorneys have separate telephone listings, stationery, business cards and secretarial services. In the Ericksons' case, they agreed to share the work and to divide any fee recovered in handling the claims. The district court found that the only arrangement that existed between the two attorneys was that of office-sharing or a landlord-tenant relationship.
Prior to August 15, 1983, the clerk of court mailed out rule 215.1 "try or dismiss" notices on this case. Defense counsel both received their respective copies of such notice. The district court found, "It does not appear from any evidence presented nor from the copy of the [rule] 215.1 notice that the notice was mailed [by the clerk of court] to Mike Christensen as an attorney for the plaintiffs." Defendants do not dispute this finding. The briefs of the parties on appeal assume that Christensen was not given a rule 215.1 notice by the clerk. An affidavit by the chief deputy clerk of court indicates that such notice was mailed to attorney Smith, although Smith claims that it was not received at his office.
No continuance order under rule 215.1 was obtained by the parties prior to January 1, 1984, and the clerk noted dismissal of the Ericksons' case on the docket on January 3, 1984. Doland v. Boone County, 376 N.W.2d 870, 873 (Iowa 1985).
Ten months later, on November 7, plaintiffs filed an application for reinstatement of the case, contending that counsel for plaintiffs never received a rule 215.1 notice of the upcoming dismissal as provided in the rule.
Defendants resisted the application to reinstate the case through a special appearance, Iowa Rules of Civil Procedure 66 and 104(a), with sworn affidavits filed by counsel of record for each of the defendants stating that rule 215.1 notices had been received by them. An affidavit of the chief deputy clerk of court, outlining the procedure for preparing and mailing rule 215.1 notices to counsel, also was filed. An affidavit of the county purchasing agent, who had charge of the practices followed involving outgoing mail in the courthouse, was included in the resistance.
Plaintiffs then filed affidavits of Mark Smith, Janet Bryan-Galloway, who was an attorney practicing with Smith, Mike Christensen and a legal secretary for Christensen which claimed that a rule 215.1 notice for the Ericksons' case was not received in the office.
The district court concluded that plaintiffs had not successfully rebutted the presumption that notice was mailed to attorney Smith. See Liberty Mutual Insurance Co. v. Caterpillar Tractor Co., 353 N.W.2d 854 (Iowa 1984); Public Finance Co. v. Van Blaricome, 324 N.W.2d 716, 721 (Iowa 1982). The court further ruled that under the unique facts of the case, notice mailed to only one of plaintiffs' attorneys was substantial compliance with rule 215.1 and the service requirement of Iowa Rule of Civil Procedure 82. Accordingly, plaintiffs' application for reinstatement was denied and defendants' special appearance was sustained. Plaintiffs appealed.
The issues raised on appeal are: 1) whether both of plaintiffs' attorneys of record, Mark Smith and Mike Christensen, were entitled to have rule 215.1 notices given or mailed to them or whether notice mailed to one of the attorneys was sufficient; and 2) whether plaintiffs dispelled the presumption of mailing the rule 215.1 notice to attorney Mark Smith that accompanies the use of regular procedures in the clerk's office. Because our disposition of the first issue is controlling, we need not address the second one.
II. Required service of notice under rule 215.1. It is undisputed that the clerk of court's office did not give or mail a rule 215.1 notice to Mike Christensen, one of plaintiffs' two attorneys of record. Plaintiffs contend that both of their attorneys were entitled to such notice, and that in the absence of such complete notice, service under rule 215.1 was fatally defective and the dismissal of the case was void.
Defendants, on the other hand, argue that under this record notice to one of plaintiffs' attorneys constituted substantial compliance with the notice requirement set forth in rule 215.1. See Greene v. Tri-County Community School District, 315 N.W.2d 779, 782 (Iowa 1982). The district court agreed with defendants and concluded that rule 215.1 was validly invoked, and that the case was properly dismissed.
We begin our analysis of this issue by examining the relevant portion of rule 215.1 which provides:
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 as provided in R.C.P. 82 of:
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Rohovit v. Mecta Corp., 92-1853
...215.1 is not appropriate when the clerk has failed to give counsel the "try or dismiss" notice required by the rule, Erickson v. Salama, 379 N.W.2d 904, 907 (Iowa 1986), or has served the notice late, Greene v. Tri-County Community School District, 315 N.W.2d 779, 782 (Iowa Finally, adminis......