Grant v. Cedar Falls Oil Co.

• Decision Date: 19 February 1992
• Docket Number: No. 90-415,90-415
• Parties: Beverly GRANT and Connie Carson, Appellants, v. CEDAR FALLS OIL CO. d/b/a Food 4 Less, Appellee.
• Court: Iowa Supreme Court

Page 863

480 N.W.2d 863

Beverly GRANT and Connie Carson, Appellants, v. CEDAR FALLS OIL CO. d/b/a Food 4 Less, Appellee.

No. 90-415.

Supreme Court of Iowa.

Feb. 19, 1992.

Alfredo Parrish and Andrew J. Dunn of Parrish, Kruidenier & Exline, Des Moines, for appellants.

Kasey W. Kincaid of Faegre & Benson, Des Moines, for appellee.

Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and SNELL, JJ.

CARTER, Justice.

The issue that we must decide on this appeal is whether an amendment to plaintiffs' petition, which corrected an error in the name of the corporate defendant being sued, relates back to the time the original petition was filed. The district court ruled that the amendment did not relate back and that the action was therefore barred by the statute of limitations. The court of appeals reversed the district court's judgment, holding that the amendment did relate back. After reviewing the arguments presented, we agree with the district court and disagree with the court of appeals.

Plaintiffs, Beverly Grant and Connie Carson, who are sisters, retained counsel to sue the proprietors of a "Food 4 Less" store in Des Moines. The basis for their action was a belief that they had been unlawfully detained by store employees with respect to a suspected shoplifting incident. The alleged unlawful detention took place on September 2, 1987.

A civil action alleging unlawful detention by Food 4 Less employees was filed on plaintiffs' behalf with the Clerk of the Iowa District Court on September 5, 1989. Because of the timing of the Labor Day weekend, this filing date would have been the last permissible date for commencement of an action within the two-year statute of limitations.

Plaintiffs' petition named the defendant as

HOLIDAY ERICKSON PETROLEUM, INC.

d/b/a FOOD 4 LESS.

Believing that the entity named as defendant was a foreign corporation, plaintiffs' counsel attempted to make service of original notice pursuant to Iowa Code section 617.3 (1989).

On the date the action was commenced, plaintiffs' counsel filed duplicate copies of the petition with the Iowa Secretary of State and mailed a "notification of filing" to the named defendant at a Minneapolis, Minnesota, address. In addition, plaintiffs' counsel, on that same date, mailed copies of the petition and an original notice to the address of the Food 4 Less store where the alleged detention took place and to another Food 4 Less store in Des Moines.

On September 8, 1989, a Des Moines attorney called the office of plaintiffs' counsel concerning this matter. The caller failed to make contact because plaintiffs' counsel was out of the office. He left his name and telephone number with a request that the call be returned. When plaintiffs' counsel returned the call, he was told that the lawyer would be representing the defendant in the pending action.

The notification of filing that had been mailed to the named defendant at the Minneapolis address had indicated that that defendant would have sixty days within which to answer or file a motion. On November 4, 1989 (a Saturday), the same Des Moines lawyer again attempted to contact plaintiffs' counsel who was again out of the office. When plaintiffs' counsel called back on the following Monday, he was advised that Holiday Erickson Petroleum, Inc. was a nonexistent entity and that the Des Moines Food 4 Less stores were owned by Cedar Falls Oil Co., an Iowa corporation.

On November 6, 1989, plaintiffs filed an amendment to their petition correcting the name of the defendant to reflect the proper entity. This amendment was served on the registered agent of Cedar Falls Oil Co. On November 27, 1989, Cedar Falls Oil Co. d/b/a Food 4 Less filed a motion to dismiss, asserting that it was the owner of the store where plaintiffs' alleged illegal detention took place but that an action had not been commenced against it within the period of the statute of limitations. At the hearing on the motion to dismiss, plaintiffs asserted that their amendment related back to the filing of the original petition. As we have previously indicated, the district court disagreed and granted the motion to dismiss. This appeal ensued.

This appeal presents only a statute-of-limitations issue. No defect, if any, in the service of process has been asserted. The statute-of-limitations question turns on the interpretation to be given Iowa Rule of Civil Procedure 89. That rule provides:

Making and construing amendments. All amendments must be on a separate paper, duly filed, without interlining or expunging prior pleadings. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

(Emphasis added.)

We have previously considered this rule as it applies to an amendment changing parties after the limitations period has expired. In Jacobson v. Union Story Trust & Savings Bank, 338 N.W.2d 161 (Iowa 1983), we held that an amendment substituting as defendant the personal representative of a decedent originally named as defendant did not relate back. The decedent had died before the action was commenced, and the amendment substituting the personal representative was filed nine months after the statute of limitations had expired. The record in Jacobson was void concerning the time when the personal representative had been notified that the action against the decedent had been commenced.

Although we held in Jacobson that relation back under rule 89 does not occur unless the new party has received notice of the institution of the action "within the period provided by law for commencing the action against him," see 338 N.W.2d at 164, we did not address how this time period should be measured. In the present case, the defendant contends, and the district court held, that this is a period beginning on the day the cause of action accrues and ending two years later (unless extended by a weekend or holiday). ¹ If this interpretation is adopted, the notice given to the defendant of the initiation of the action was not "received" within the required period of time, as the notice was not mailed...