J and D Bowles v. Rendy Brown, 99-1396

• Court: Iowa Court of Appeals
• Decision Date: 13 September 2000
• Docket Number: 99-1396
• Citation: J and D Bowles v. Rendy Brown (Iowa App. 2000)
• Parties: NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. JEWEL L. BOWLES and DAVID P. BOWLES, Plaintiffs-Appellees, vs. RENDY MAE BROWN, WILLIAM BELTRAN, and ALLSTATE INSURANCE COMPANY, Defendants, KIMARY A. PHILLIPS d/b/a CLUB THIRTY SOMETHING, Defendant-Appellant./ 99-1396 IN THE COURT OF APPEALS OF IOWA Filed

NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group

JEWEL L. BOWLES and DAVID P. BOWLES, Plaintiffs-Appellees vs RENDY MAE BROWN, WILLIAM BELTRAN, and ALLSTATE INSURANCE COMPANY Defendants, KIMARY A. PHILLIPS d/b/a CLUB THIRTY SOMETHING, Defendant-Appellant.

No. 0-266 / 99-1396

IN THE COURT OF APPEALS OF IOWA

Filed September 13, 2000

Appeal from the Iowa District Court for Black Hawk County, Todd Geer, Judge.

Defendant Kimary Phillips d/b/a Club Thirty Something appeals from a district court order granting plaintiffs' motion for default judgment and motion to strike her answer. AFFIRMED.

Thomas B. Read and James L. Sines of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellant.

Robert L. Rausch of the Rausch Law Firm, Waterloo, for appellees.

Considered by Mahan, P.J., and Vaitheswaran, J., and Peterson, S.J.*

*Senior Judge assigned by order pursuant to Iowa Code § 602.9206 (1999).

PETERSON, S.J.

Kimary A. Phillips d/b/a Club Thirty Something appeals from a district court order granting the plaintiffs' motion for default judgment and motion to strike her answer in this negligence/dram shop action. She contends the trial court erred in striking her answer and entering a default judgment in plaintiffs' favor when it failed to order the clerk of court to mail her a copy of the order granting plaintiffs' motion to compel and the clerk did not mail a copy of the order and the court abused its discretion in entering a default judgment against her. We affirm.

Background and Proceedings. On February 1, 1997, there was an accident in Waterloo, Iowa, between a motor vehicle driven by Jewel L. Bowles and a motor vehicle driven by Rendy Mae Brown. On March 27, 1998, a petition was filed alleging Rendy Mae Brown was negligent in the operation of her motor vehicle. It also alleged Kimary A. Phillips (Phillips) operated Club Thirty Something and her agents or employees sold and served liquor, beer, or both to Rendy Mae Brown to the point where she or her agents or employees knew or should have known Rendy Mae Brown would become intoxicated and/or she or her agents or employees knew or should have known Rendy Mae Brown was intoxicated.

This petition had been proceeded by a notice of intent to bring a lawsuit on behalf of Jewel Bowles which was served by certified mail on Club Thirty Something on July 12, 1997, and the Preferred National Insurance Company on July 17, 1997. The file contains receipts showing the service on the indicated dates. The original notice, petition, and jury demand was served on Phillips in Waterloo, Iowa, on April 3, 1998.

On May 19, 1998, the attorney for Jewel Bowles wrote to the Preferred National Insurance Company. The letter advised them a lawsuit had been filed against their insured, Kimary A. Phillips, d/b/a Club Thirty Something on April 4, 1998, and to date no answer had been placed on file. A copy of the original notice, petition of law and jury demand was also forwarded to the insurance company at that time. On June 25, 1998, an answer was filed for Phillips.

On July 1, 1998, the plaintiffs filed a request for production of documents and submitted interrogatories to Phillips. On February 18, 1999, plaintiffs' attorney wrote to Phillips's attorney indicating they had not yet received responses to a discovery request which was served on July 1, 1998. The letter requested the responses and the documents requested be received by March 5, 1999.

On April 2, 1999, plaintiffs' counsel again wrote to Phillips's counsel indicating answers to the interrogatories and requests for production of documents had not been received. The letter further noted in the event the responses were not received by April 15, 1999, a motion to compel responses would be filed.

On April 19, 1999, the plaintiffs filed a motion to compel Phillips to produce the requested documents and answer the interrogatories. The motion was set for hearing on May 4, 1999, and directed that the clerk shall provide copies of the order setting the matter for hearing to all counsel of record.

On May 4, 1999, the parties appeared by their attorneys. The order ruling on the motion to compel indicates Phillips has not responded to communications from her attorney. He has hired an investigator to locate her and requested additional time. The order directed Phillips respond to all of plaintiffs' outstanding discovery requests on or before June 1, 1999, on pain of having her answer and defenses to the plaintiffs' claim stricken and a default entered against her. The order entered indicated the clerk of court shall provide copies of the order to counsel of record.

On June 21, 1999, the plaintiffs filed a motion for default judgment and a motion to strike the answer. That motion was set for hearing on July 9, 1999, and the order setting it for hearing provided the clerk shall provide copies of the order to all counsel of record.

On July 8, 1999, an appearance was filed on behalf of Phillips by new attorneys. On July 9, 1999, an order was entered granting the plaintiffs' motion for default judgment and motion to strike Phillips's answer and entered a default against her.

The matter came before the court for jury trial on July 20, 1999. On July 26, 1999, the jury rendered a verdict in favor of the plaintiffs in the sum of $74,902.23. On July 29, 1999, an order was entered in favor of the plaintiff, Jewel L. Bowles, and against Kimary A. Phillips d/b/a Club Thirty Something in the sum of $72,402.23.

Discussion. Discovery sanctions by a trial court are discretionary and will not be reversed unless there has been an...