McCormick v. Meyer, 97-993
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | ANDREASEN; After another status review hearing; Fautsch's May |
| Citation | 582 N.W.2d 141 |
| Parties | Patrick McCORMICK and Janice McCormick, Appellees, v. Mary MEYER, Appellant. |
| Docket Number | No. 97-993,97-993 |
| Decision Date | 29 July 1998 |
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v.
Mary MEYER, Appellant.
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Douglas M. Henry and Norman J. Wangberg of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.
Robert L. Day, Jr. of the Law Office of Robert L. Day, Jr., Dubuque, for appellees.
Considered by HARRIS, P.J., and LARSON, LAVORATO, SNELL, and ANDREASEN, JJ.
ANDREASEN, Justice.
Mary Meyer appeals from an order denying her motion to dismiss. The petition, filed by Patrick and Janice McCormick on June 30, 1995, alleged they were damaged as a result of Meyer's negligence in causing an automobile accident on July 10, 1993. Meyer alleges the lengthy delay between the time the petition was filed and when she was served with notice was abusive. The court found the delay was justified and denied the motion to dismiss.
We granted Meyer's application for interlocutory appeal. After review of the record, we find the district court's determination that delay was justified is not supported by substantial evidence. We reverse the order of the district court and remand with direction to dismiss the action.
I. Background Facts and Proceedings.
On July 10, 1993, while visiting her mother in Dubuque, Iowa, and while driving her mother's vehicle, Meyer was involved in a traffic accident with a vehicle owned and operated by Patrick McCormick. After the accident Meyer gave the investigating officer her address in Hoffman Estates, Illinois, her social security number and date of birth, and her mother's address in Iowa. These were all listed on the accident information form.
In December 1993, Meyer and her husband moved to a new address in Glendale Heights, Illinois. Their new telephone number was listed and they left a forwarding address with the post office in Hoffman Estates. In April 1995, Meyer and her husband purchased a home and moved to Bartlett, Illinois.
After the McCormicks' petition was filed with the clerk of district court for Dubuque County, their attorney, Stuart Hoover, mailed an original notice with directions that personal service of Meyer be made by the sheriff's office of Cook County, Illinois. The sheriff's office tried to deliver the notice on Meyer at her former address in Hoffman Estates. Obviously, Meyer did not receive notice since she had moved some nineteen months earlier. Service was returned by the sheriff's office to the plaintiffs' counsel on July 31, 1995, indicating service of the original notice was unsuccessful.
Under a local Iowa court rule in the First Judicial District, a status review hearing of civil cases is required when no return of service has been filed within ninety days of the filing of the petition. This procedure was developed to comply with the time standards for case processing implemented by the Iowa Supreme Court. At a status hearing on October 19, after conferring with plaintiffs' attorney, Judge Curnan stated the plaintiffs were seeking service pursuant to the long-arm statute and ordered that the matter be reviewed again in ninety days.
Over the next two months McCormicks' counsel took no further action to locate Meyer. On December 29 counsel sent a letter to the secretary of state along with copies of the
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original notice and petition requesting long-arm service pursuant to the provisions of Iowa Code section 617.3 (1995) be made on Meyer. The original notice and petition were received and filed by the secretary of state on January 5, 1996. On January 9 counsel mailed notification of the filing with the secretary of state to Meyer at the Hoffman Estates address. The notification was returned by the post office marked "addressee unknown: return to sender."An order was entered by Judge Curnan following a status review hearing on January 29, 1996, which stated:
Attorney Hoover advises the court that he will be filing a motion for leave to obtain service by publication. This matter shall come on for review before the order hour judge in thirty days to determine if further action has in fact been taken.
On April 16 Judge Pearson reviewed the file and found that no subsequent motion or pleading had been filed since the January 29 order. The judge then ordered that the case be dismissed as abandoned and assessed the cost to the plaintiffs.
Ten days after Judge Pearson's dismissal was entered, attorney Hoover filed a motion to vacate the dismissal order. An ex parte hearing on the motion was held on May 6. On May 8 Judge Fautsch granted the motion to vacate the order of dismissal. The court found the McCormicks had exercised "due diligence in attempting to cause process to be served." At the hearing the court received and granted Hoover's motion for alternative service of notice on the defendant's insurance company. The court order specifically provided: "Plaintiffs are given twenty days to effectuate service on defendant's insurance company." Although Hoover telephoned the insurance company's claim office in Dubuque regarding acceptance of service, no service was made on the designated representative of Meyer's insurance company, nor was an acceptance of service of notice or appearance entered by the insurance company.
In June, counsel attempted to serve Meyer under the nonresident motorist provisions of Iowa Code sections 321.498-.502 by filing an original notice with the director of transportation and then mailing to Meyer a notification of the filing. The notification letter referred to the filing of the notice "with the secretary of state" not with the "director of transportation" as provided by Iowa Code section 321.502. The letter to Meyer was returned by the post office stamped "forwarding order expired." After this letter was received, Hoover called the post office and was told that the forwarding order had expired and they could offer no other help. Hoover attempted to locate Meyer's current address through her driver's license but was unsuccessful in this endeavor.
After another status review hearing, Judge Fautsch granted the McCormicks' motion for service by publication. The court's order, dated September 11, 1996, required publication not less than fourteen days from the date of the order. McCormicks' attorney understood the order contemplated publication within fourteen days of the date of the order. The published notice required Meyer to respond to the petition within sixty days of the filing of notice with the secretary of state. The only filing with the secretary of state had been made nine months before. The first publication did not occur until October 26. Apparently proof of the publication was received by Meyer's insurance company on November 5.
On November 6 Meyer filed a motion to dismiss. The McCormicks filed a resistance to the motion and requested the matter be set for hearing. A...
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Trobaugh v. Sondag, No. 02-0549.
...at law. Id. We are bound by the district court's findings of fact "unless not supported by substantial evidence." McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). However, "[w]e are not bound by the district court's application of legal principles or its conclusions of law." Id. Ultimat......
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Cooksey v. Cargill Meat Solutions Corp., No. 11–1630.
...Standard of Review. We review the granting of a motion to dismiss for errors at law. Iowa R.App. P. 6.907; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998).III. Discussion. A. Preservation of Error. Cargill asserts that Cooksey failed to preserve error in the district court on the argume......
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Meier v. SENECAUT III, No. 00-0114.
...for errors at law. Iowa R.App. P. 4; Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999); McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). Although we are not bound by the district court's legal conclusions, we are bound by the court's findings of fact if they are......
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Ritz v. Wapello County Bd. of Supervisors, No. 97-2134
...1994). We review a district court's ruling on a motion to dismiss for correction of errors at law. Iowa R.App.P. 4; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa A motion to dismiss is properly granted only if a plaintiff's petition "on its face shows no right of recovery under any state of......
-
Trobaugh v. Sondag, No. 02-0549.
...at law. Id. We are bound by the district court's findings of fact "unless not supported by substantial evidence." McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). However, "[w]e are not bound by the district court's application of legal principles or its conclusions of law." Id. Ultimat......
-
Cooksey v. Cargill Meat Solutions Corp., No. 11–1630.
...Standard of Review. We review the granting of a motion to dismiss for errors at law. Iowa R.App. P. 6.907; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998).III. Discussion. A. Preservation of Error. Cargill asserts that Cooksey failed to preserve error in the district court on the argume......
-
Meier v. SENECAUT III, No. 00-0114.
...for errors at law. Iowa R.App. P. 4; Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999); McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa 1998). Although we are not bound by the district court's legal conclusions, we are bound by the court's findings of fact if they are......
-
Ritz v. Wapello County Bd. of Supervisors, No. 97-2134
...1994). We review a district court's ruling on a motion to dismiss for correction of errors at law. Iowa R.App.P. 4; McCormick v. Meyer, 582 N.W.2d 141, 144 (Iowa A motion to dismiss is properly granted only if a plaintiff's petition "on its face shows no right of recovery under any state of......