Lindsay v. Davis

• Decision Date: 21 March 1979
• Docket Number: No. 61467,61467
• Citation: 276 N.W.2d 423
• Parties: Vane L. LINDSAY, Appellant, v. Betty J. DAVIS, Appellee.
• Court: Iowa Supreme Court

Page 423

276 N.W.2d 423

Vane L. LINDSAY, Appellant, v. Betty J. DAVIS, Appellee.

No. 61467.

Supreme Court of Iowa.

March 21, 1979.

Arnold O. Kenyon, II, of Kenyon Law Office, Creston, for appellant.

Thomas E. Mullin, of Mullin, Mullin, McLaughlin, Harvey & McConville, Creston, for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, HARRIS, McCORMICK, and ALLBEE, JJ.

UHLENHOPP, Justice.

This appeal involves the question of whether the showing in support of defendant Betty J. Davis' motion for summary judgment was sufficient to entitle her to judgment. See Sherwood v. Nissen, 179 N.W.2d 336, 338 (Iowa 1970) ("Frequently the question on motions for summary judgment is whether the showing in resistance to the motion is adequate. Here, however, the question is whether the showing in support of the motion was sufficient in the first place." (Citation omitted.)).

Plaintiff Vane L. Lindsay commenced this action on January 4, 1977, alleging that on January 17, 1975, Delano Granite, Inc. (a foreign corporation), sold Davis a grave marker which Delano thereafter installed. Lindsay, Delano's agent, alleged he succeeded to Delano's rights by paying the corporation the amount Davis owed. We assume for purposes of the appeal that Lindsay cannot successfully bring action in Iowa if Delano cannot do so.

Davis answered averring various defenses. We are presently concerned with the pleaded defense that suit cannot be brought in Iowa courts on a claim which originated with Delano. In that connection Davis averred in her answer that "Delano Granite, Inc., of Delano, Minnesota was not authorized to do business and did not have a permit to do business in Iowa At the time the action was commenced on January 4, 1977." (Italics added.)

Davis filed a motion for summary judgment in which she stated in this connection that "Delano Granite, Inc. was not authorized to do business and did not have a permit to do business in Iowa At the time this action was commenced, on to wit: January 4, 1977." (Italics added.) Attached to the motion was a certificate of revocation of the Iowa Secretary of State stating:

This certifies that the Certificate of Authority of DELANO GRANITE, INC. Delano, Minnesota to transact business in Iowa is hereby revoked effective November 24, 1975, pursuant to Section 496A.118, Code of Iowa, 1976, for failure to file the 1975 Annual Report.

Also attached were a copy of a letter of inquiry to the Secretary of State dated September 28, 1977, and a response stating, "A search of our files shows the above named corporation has not reinstated as of this time."

Lindsay filed a resistance to the motion, but for present purposes we need not be concerned with that document. We take as established that Delano's permit to do business in Iowa was not in effect when Lindsay sued on January 4, 1977.

The parties argue two issues: whether the Iowa statutes entitle Davis to judgment under the established fact that Delano had no Iowa permit at the time Lindsay sued, and whether Delano was engaged in interstate commerce so as to render those Iowa statutes inapplicable under the Commerce Clause. We find no necessity to consider the second issue.

I. Our rule is that "the burden is upon the movant for summary judgment to show absence of any genuine issue of a material fact." In that connection, "All material properly before the court must be viewed in a light most favorable to the opposing party." Davis v. Comito, 204 N.W.2d 607, 612 (Iowa 1973).

II. Delano and Davis allegedly made the contract on January 17, 1975. Whether Delano had a permit to do business in Iowa at that time we need not inquire, for Davis founded her motion on absence of a permit "at the time the action was commenced on January 4, 1977." She has established that Delano had no Iowa permit when Lindsay brought suit. What is the legal effect of this?

III. Davis relies on §§ 494.9, 496A.120, and 496A.130, The Code 1975.

A. Section 494.9 provides:

No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state unless prior to the making of such contract it shall have procured such permit. This prohibition shall also apply to any assignee of such foreign stock corporation and to any person claiming under such assignee of such foreign corporation or under either of them.

This section is inapplicable to the ground of the motion; it requires a permit "prior to the making of such contract" rather than prior to commencing suit. The section is also inapplicable...