McCormick v. Meyer

• Decision Date: 29 July 1998
• Docket Number: No. 97-993,97-993
• Citation: 582 N.W.2d 141
• Parties: Patrick McCORMICK and Janice McCormick, Appellees, v. Mary MEYER, Appellant.
• Court: Iowa Supreme Court

Page 141

582 N.W.2d 141

Patrick McCORMICK and Janice McCormick, Appellees, v. Mary MEYER, Appellant.

No. 97-993.

Supreme Court of Iowa.

July 29, 1998.

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 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 hearing was held on the motion on January 14, 1997. Attorney Robert L. Day, Jr. represented the McCormicks; attorney Douglas M. Henry represented Meyer. Following the hearing, Judge Curnan denied the motion to dismiss. The court concluded the order filed on May 8, 1996, finding the McCormicks had acted with due diligence, was binding as to the efforts at service made prior to that order. Judge Curnan limited his review of the record to the actions taken by the McCormicks to serve Meyer after the May 8 order.

Meyer filed a petition seeking permission to appeal in advance of final judgment. The McCormicks joined the request. We granted Meyer's application for interlocutory appeal.

II. Scope of Review.

Our review of a district court's ruling on a motion to dismiss is for correction of errors at law. Iowa R.App. P. 4; Henry v. Shober, 566 N.W.2d 190, 191 (Iowa 1997). The district court's findings of fact are binding on appeal unless not supported by substantial evidence. Dennis v. Christianson, 482 N.W.2d 448, 450 (Iowa 1992). We are not bound by the district court's application of legal principles or its conclusions of law. Id. On appeal Meyer challenges the court's authority to reinstate the case and the court's refusal to dismiss for abusive delay in service of the notice.

III. Effect of the April 1996 Dismissal Order.

Meyer claims the dismissal order of April 16, 1996, was a final order and that the district court had no subject matter jurisdiction to vacate it. She urges that the only proper method to challenge the dismissal was by appeal. The parties agree the district court had the authority to dismiss the case as abandoned. The dispute centers upon the district court's authority to reinstate the case.

Judge Fautsch's May 8, 1996 order stated:

Iowa Rule of Civil Procedure 215.1 states in part as follows: "The case shall not be dismissed if there is a timely showing that the original notice and petition have not been served and that the party resisting dismissal have used due diligence in attempting to cause process to be served." This court is satisfied that plaintiffs have used "due diligence in attempting to cause process to be served." It is also clear from the case law that discretion is given to the trial court in this regard and that trial on the merits is favored.

Rule 215.1 requires that the clerk of court give notice to counsel of record prior to August 15 of each year in cases that were filed more than one year prior to July 15. The notice must state that such case is subject to dismissal if not tried prior to January 1 of the next succeeding year. All such cases are to be assigned and tried or be dismissed unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte. The rule further provides:

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...