Liberty Mut. Ins. Co. v. Caterpillar Tractor Co.
| Decision Date | 04 September 1984 |
| Docket Number | No. 83-1254,83-1254 |
| Citation | 353 N.W.2d 854 |
| Parties | LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. CATERPILLAR TRACTOR COMPANY and Gibbs-Cook Equipment Company, Appellees. |
| Court | Iowa Supreme Court |
Ross H. Sidney and John Werner of Grefe & Sidney, Des Moines, for appellant.
L.W. Rosebrook and Patricia J. Martin of Ahlers, Cooney, Dorweiler, Haynie & Smith, and Larry D. Spaulding of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellees.
Considered by REYNOLDSON, C.J., and UHLENHOPP, LARSON, SCHULTZ, and WOLLE, JJ.
This appeal involves the presumption of mailing which arises from an office practice and the effect on that presumption of proof that the item was not received. See Public Finance Co. v. Van Blaricome, 324 N.W.2d 716 (Iowa 1982).
Rule 215.1 of the rules of civil procedure states in pertinent part:
and 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....
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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.
Rule 82 states in pertinent part:
[S]ervice upon the attorney or upon a party shall be made by ... mailing it to him at his last known address.... Service by mail is complete upon mailing.
Service of the notice by the clerk under rule 82 is a condition precedent to operation of rule 215.1. Greene v. Tri-County School District, 315 N.W.2d 779 (Iowa 1982).
On June 1, 1981, plaintiff Liberty Mutual Insurance Company filed a petition asking damages of defendants Caterpillar Tractor Company and Gibbs-Cook Equipment Company. Liberty Mutual was represented by Grefe & Sidney; Caterpillar was represented by Ahlers, Cooney, Dorweiler, Haynie & Smith; and Gibbs-Cook was represented by Bradshaw, Fowler, Proctor & Fairgrave. Issues were joined and discovery ensued.
The district court clerk's docket sheet for this case bears the following stamp: "215.1 Notice Mailed August 11, 1982". The record before us shows that the Ahlers and Bradshaw firms received copies of a rule 215.1 notice shortly after August 11, 1982.
Discovery in the action continued until November 1982. December 1982 arrived, but Liberty Mutual took no action for a continuance of the action to avoid a dismissal on January 1, 1983, under rule 215.1.
The clerk's docket sheet bears the following additional stamp: "Dismissed by Clerk under rule 215.1 January 3, 1983 Costs taxed to plaintiff". The clerk gave no notice of this entry. No notice is required, as the dismissal is automatic if the required notice has been given prior to August 15. Koss v. City of Cedar Rapids, 300 N.W.2d 153, 157 (Iowa 1981). Following this entry by the clerk, Liberty Mutual took no action within six months seeking reinstatement of the case under the rule.
On July 6, 1983, Liberty Mutual filed a request for production of documents and served copies on the two defense firms. On July 11, 1983, the Ahlers firm wrote the Grefe firm that the action had been dismissed.
On July 12, 1983, Liberty Mutual filed a motion to reinstate the case on the ground that the Grefe firm had never received the notice required to be given by the clerk prior to August 15 under rule 215.1. On July 21, 1983, Caterpillar specially appeared and resisted through the Ahlers firm, on the ground that more than six months had elapsed since the dismissal of the case. In support of its special appearance, Caterpillar alleged that the clerk sent out the rule 215.1 notices but Liberty Mutual did not obtain a continuance or move for reinstatement within the time allowed. Caterpillar alleged inter alia: "Both defendants Caterpillar Tractor Company and Gibbs-Cook Equipment Co. received their respective copies of the 215.1 Notice in a timely fashion." Caterpillar attached to its special appearance a copy of the clerk's docket sheet bearing the two stamped entries we have quoted, and also the copy of the notice under rule 215.1 which the Ahler's firm had received. In part that notice states in printing, except as to the date: "This notice mailed or delivered to all parties entitled to notice under R.C.P. 82 on the 11th day of August 1982." Below its heading the notice is addressed: "To Grefe & S. Bradshaw, F--Ahlers, C." After "Ahlers, C." is a checkmark.
On July 26, 1983, Gibbs-Cook specially appeared and resisted through the Bradshaw firm as follows:
COMES NOW Defendant Gibbs-Cook Equipment Co., and joins Caterpillar Tractor Company in its Resistance to Plaintiff's Motion for Reinstatement in all respects.
Proofs in the special appearance proceedings were made by affidavits. Caterpillar presented two affidavits. They concerned the practice in the clerk's office for preparing notices under rule 215.1 and the practice in the county courthouse regarding outgoing mail. The pertinent part of the affidavit of the Chief Civil Deputy Clerk states
that the standard procedure used in filling out the Notices is to write (or type) the names of all counsel of record on the line at the top of the Notice; that a sufficient number of photocopies is then made so that each party can be mailed a copy; that the envelopes in which the Notices will be sent are addressed; that at the time the copies are inserted into the envelopes, a checkmark is placed by the names of the attorneys to signify that copies have been sent; that the envelopes are then placed into mail bins in this office where they are later routinely picked up by employees from the mail room; that the envelopes containing the Notices are sealed, stamped and actually mailed by employees not under my supervision; and that to the best of my knowledge, this procedure was utilized in the mailing of the 215.1 Notices to all attorneys of record in the case of Liberty Mutual Insurance Company v. Caterpillar Tractor Company, Law No. CL 040-23528.
(First emphasis added.) The Chief Civil Deputy Clerk did not attach or produce a clerk's file copy of the notice.
The second affidavit was by the County Purchasing Agent who has charge of the outgoing mail in the county courthouse. The pertinent part of that affidavit states
that the standard procedure used in picking up mail from the various departments is that all envelopes are picked up from the mail bins in the Clerk of Court's office twice a day, taken to the mail room in the Administrative Office Building, sealed, metered and taken to the post office and inserted in mail receptacles by employees under my supervision; and that to the best of my knowledge, this procedure was utilized in the mailing of all material placed in the mail bin from the Clerk of Court's office on or about August 11, 1982.
Liberty Mutual likewise presented two affidavits. A Grefe firm associate who had been in the case from its inception stated in his affidavit:
I have reviewed and inspected each and every pleading and item of correspondence contained in my pleadings files, and no 215.1 Notice exists therein. Based upon my independent memory and familiarity with this file, and upon this firm's procedures relating to filing and handling of 215.1 notices, I am absolutely certain that no such notice was ever received from the Clerk of Court.
Ross H. Sidney, a member of the Grefe firm, also appeared in the action from its inception. His secretary maintains a separate file of rule 215.1 notices as to all cases in the office, as well as an index of such notices. She stated in her affidavit:
Upon receipt of any 215.1 Notice, it is my consistent practice to record the parties, county and case for each notice received. Thereafter, in order to assure that any necessary action is taken, a copy of said notice is given to litigation counsel, so that the attorneys are reminded of the notices well in advance of the automatic dismissal dates set forth in the notices.
I have, on July 11, 1983, carefully examined the Rule 215.1 Notice file described above, and hereby state that such file contains no reference whatsoever to any such notice pertaining to Polk County No. CL 040-23528, Liberty Mutual Insurance Co. v. Caterpillar Tractor Company and Gibbs-Cook Equipment Co., and it is my belief that such a notice has never been received at the Grefe & Sidney law office. Attached hereto is a true copy of the index maintained for all cases in which notice was received relating to dismissals effective January 1, 1983.
The index which she attached contains a list of twenty-three cases having rule 215.1 notices, pending in eight counties including Polk. The list does not contain the instant case.
After hearing, the district court sustained the special appearance. Liberty Mutual appealed.
The decision in the appeal turns on the answers to two questions. Is service of a rule 215.1 notice complete when the notice is mailed by the clerk or when it is received by the addressee? Was a rule 215.1 notice in this case mailed to the Grefe firm?
In special appearance proceedings, the district court's fact findings on substantial evidence have the effect of a jury...
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