Feldhacker v. West, 3-522 / 12-2003

• Decision Date: 24 July 2013
• Docket Number: No. 3-522 / 12-2003,3-522 / 12-2003
• Parties: SCOTT FELDHACKER and RACHELLE BARNES, Plaintiffs-Appellees, v. TRAVIS LEE WEST, Defendant-Appellant, and AMERICAN FAMILY MUTUAL INSURANCE, A Corporation, Defendant.
• Court: Iowa Court of Appeals

SCOTT FELDHACKER and RACHELLE BARNES, Plaintiffs-Appellees,

v.TRAVIS LEE WEST, Defendant-Appellant,and AMERICAN FAMILY MUTUAL INSURANCE, A Corporation, Defendant.

No. 3-522 / 12-2003

COURT OF APPEALS OF IOWA

Filed July 24, 2013

Appeal from the Iowa District Court for Union County, David L. Christensen, Judge.

Travis West appeals the denial of his motion to dismiss for failure to serve process. AFFIRMED.

Stanley Jay Thompson of Davis Brown Law Firm, Des Moines, for appellant.

Marc Allen Humphrey of Humphrey Law Firm, P.C., Des Moines, and Tara Lynn Hofbauer of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellees.

Courtney J. Vernon, West Des Moines, for American Family Mutual Insurance.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

TABOR, J.

Travis West appeals the district court's denial of his motion to dismiss for failure to serve process. He contends good cause did not exist under Iowa Rule of Civil Procedure 1.302(5) to grant plaintiffs' motion to extend the ninety-day period. He also argues because plaintiffs failed to serve him with their motion to extend, they should not have received additional time to serve their petition.

Because a combination of circumstances justify the district court's extension of the service deadline, we affirm. The plaintiffs were engaged in ongoing settlement negotiations, faced continuing medical treatment, and experienced difficulty obtaining medical records. They also took affirmative steps to effectuate service through the sheriff's office. We agree with the district court's finding of good cause for additional time to serve West with the petition. The good cause finding is not impacted by plaintiffs' failure to serve West with the extension request.

I. Background Facts and Proceedings

On July 5, 2012, Scott Feldhacker and Rachelle Barnes¹ filed a petition at law and jury demand against Travis West and American Family Mutual Insurance. The petition alleges on July 8, 2010, West negligently crashed his Dodge Ram pickup truck into the Ford Escort driven by Feldhacker and in which Barnes was a passenger. The petition includes claims against American Family—the plaintiffs' underinsured motorist coverage provider.

Aware of the ninety-day deadline to serve process on defendants, plaintiffs' counsel explored potential settlement with West's insurance carrier, Buckeye State Mutual Insurance Company. On September 28, 2012, while still awaiting complete medical records and without yet reaching settlement, counsel sent process to the Adams County Sheriff to be served on defendants.

On October 3, 2012—the final day for timely service—plaintiffs faxed a motion to the court requesting additional time to serve the petition on West. The motion explained American Family had received process that day, but despite several attempts by the sheriff's office, West had not been successfully served. Included with the motion was a proposed order granting the extension. Plaintiffs' counsel did not provide West with either document.

Two days later West filed a motion to dismiss based on plaintiffs' failure to serve process within ninety days of filing their petition. Later that day the court signed the proposed order granting the plaintiffs a thirty-day extension to serve West.² Service occurred two days after the court's grant.

On November 2, 2012, the court held a hearing on West's motion to dismiss. The court overruled the motion later that day, reasoning West was served process before the extended deadline.

West filed an application for interlocutory appeal with our supreme court, contesting the district court's denial of his motion to dismiss. The supreme court granted West's application and transferred the case to our court.

II. Scope and Standard of Review

We review a district court's ruling on a motion to dismiss for correction of legal error. Rucker v. Taylor, 828 N.W.2d 595, 598 (Iowa 2013). While case pleadings ordinarily form the outer boundaries of material to be evaluated in a motion to dismiss, when the motion is based on failure to provide timely service, a court may consider facts outside the pleadings. Id. at 598-99. So long as the district court's findings of fact are supported by substantial evidence, they are binding on appeal. Id. at 599 (differentiating district court's fact-findings from legal conclusions or application of legal principles, which are not binding on review).

III. Error Preservation

On appeal, West argues the district court erred in granting additional time to serve him because (1) the record does not support its good cause finding, and (2) West was not served plaintiffs' motion to extend. The plaintiffs contend West failed to preserve error on either argument. They assert West should have filed a motion under Iowa Rule of Civil Procedure 1.904³ either after the court granted the extension or overruled West's motion to dismiss. The plaintiffs additionallyassert because West did not argue in the district court that their motion to extend was improperly served, the issue is not preserved for appeal.

According to West, he sufficiently preserved error on both issues, based on the court's two separate rulings and his trial briefs. West believes his arguments in his motion-to-dismiss brief served the function of a rule 1.904(2) motion for both challenges, and because the court's ruling indicates it considered the issues, even if the analysis is incomplete or sparse, error was preserved.

Error preservation rules exist to provide district courts an opportunity to avoid or correct errors and to provide a record for appellate courts. Veatch v. Bartels Lutheran Home, 804 N.W.2d 530, 533 (Iowa Ct. App. 2011). A party ordinarily must raise an issue and the district court must rule on that issue to ensure preservation for appellate review. Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C., 796 N.W.2d 886, 892 (Iowa 2011). Even if a party properly raises an issue, if the district court fails to rule on it, the party must file a motion requesting a ruling on the issue to preserve error. Kramer v. Bd. of Adjustment for Sioux County, 795 N.W.2d 86, 93 (Iowa Ct. App. 2010).

In plaintiffs' motion to extend, they list circumstances they contend constitute good cause to extend the filing deadline:

• They were in "consistent contact" with West's insurance carrier, Buckeye State Mutual Insurance Company, and its adjuster, Deb Wobig, for purposes of out-of-court settlement.

• They were both injured in the collision and continued to receive medical treatment.

• Because one of Feldhacker's physicians recently had his medical license suspended, they were having difficulties gaining medical records to use for settlement purposes.

• Barnes had since been diagnosed with a blood clot, and the medical records would be important to discuss settlement.

• With five days left to serve, they sent the original notice and petition to the Adams County Sheriff's Office and maintained daily contact with the office to stay apprised of the status.

The court's order granting additional time included a conclusory good cause finding: "the Court having reviewed the Motion and being fully advised in the premises does hereby find that the Motion should be granted for good cause shown."

In West's motion to dismiss, filed the same day as the court's order granting the extension, he contends no good cause exists for the failed service since plaintiffs had not taken affirmative action to effectuate service and had not been prohibited from doing so through no fault of their own. The plaintiffs resisted the motion, reiterating the same background facts and reasoning advanced in their motion to extend. They also "respectfully suggest[ed] that good cause ha[d] been shown for the extension of time for service, as requested." West's reply to their resistance included an in-depth good cause analysis.

The record does not include a transcript of the November 2, 2012 hearing on West's motion to dismiss. The court's subsequent handwritten order reads in full:

Contested hearing held on Travis Lee West's motion to dismiss. An Order Granting Extension of Time to Serve Defendant West granted plaintiffs until November 3, 2012 to serve West. Service was [A]ccomplished prior to the deadline. West's motion to dismiss is overruled. So Ordered.

In recently rejecting an argument that a rule 1.904(2) motion was required to preserve error, our supreme court explained: "If the court's ruling indicates thatthe court considered the issue and necessarily ruled on it, even if the court's reasoning is 'incomplete or sparse,' the issue has been preserved." Lamasters v. State, 821 N.W.2d 856, 564 (Iowa 2012). Even more recently, the court found error was preserved in a motion to dismiss when a district court incorporated the motion into its order:

When the district court enters an order incorporating the reasons made in the motion to dismiss as grounds for dismissal, we take the order at face value. We assume that the district court read the motion to dismiss, understood the arguments that were made, and relied upon them in reaching a ruling. Any suggestion that the district court would be surprised under these circumstances amounts to an attack on the diligence of the district court that we refuse to entertain.

Cooksey v. Cargill Meat Solutions Corp., 831 N.W.2d 94, 97 (Iowa 2013).

Here the court expressly found good cause existed based on the plaintiffs' motion to extend, which they again referenced in resisting West's motion to dismiss. Both parties extensively briefed the issue of good cause between the court's October 5 finding that good cause existed and its November 2 denial of West's motion to dismiss. We believe the November 2 ruling implicitly affirmed the court's earlier good cause finding. See State v. Paredes, 775 N.W.2d 554, 561 (Iowa 2009) ("[w]here a question is obvious and ruled upon by the district court, the issue is adequately preserved.").

Because both rulings centered on the rule 1.302(5)...