Metz v. Amoco Oil Co., 96-1485

• Citation: 581 N.W.2d 597
• Decision Date: 01 July 1998
• Docket Number: No. 96-1485,96-1485
• Parties: John Phillip METZ III, Joann Metz, Jaime M. Metz, and John P. Metz, IV, Appellants, v. AMOCO OIL COMPANY, a Foreign Corporation; Burlington Northern Railroad Company, a Foreign Corporation; Mobil Oil Corp., a Foreign Corporation; Omaha Public Power District, a Nebraska Political Subdivision; and Williams Pipe Line Company, a Foreign Corporation, Appellees. BURLINGTON NORTHERN RAILROAD COMPANY, a Foreign Corporation, Counterclaimant, v. John Phillip METZ III and Joann Metz, Defendants to Counterclaim.
• Court: United States State Supreme Court of Iowa

Page 597

581 N.W.2d 597

John Phillip METZ III, Joann Metz, Jaime M. Metz, and John P. Metz, IV, Appellants, v. AMOCO OIL COMPANY, a Foreign Corporation; Burlington Northern Railroad Company, a Foreign Corporation; Mobil Oil Corp., a Foreign Corporation; Omaha Public Power District, a Nebraska Political Subdivision; and Williams Pipe Line Company, a Foreign Corporation, Appellees.

BURLINGTON NORTHERN RAILROAD COMPANY, a Foreign Corporation, Counterclaimant, v. John Phillip METZ III and Joann Metz, Defendants to Counterclaim.

No. 96-1485.

Supreme Court of Iowa.

July 1, 1998.

Rehearing Denied Aug. 11, 1998.

Laura L. Pattermann, Council Bluffs, for appellants.

Thomas R. Buchanan of McDowell, Rice, Smith & Gaar, P.C., Kansas City, Missouri, and Michael G. Reilly of Reilly, Petersen &amp Hannan, P.L.C., Council Bluffs, for appellee Williams Pipe Line Company.

Roger Shiffermiller of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, Nebraska, for appellee Omaha Public Power District.

Rodney M. Confer of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, Nebraska, and William R. Hughes of Stuart, Tinley, Peters, Thorn & Hughes, Council Bluffs, for appellee Burlington Northern Railroad.

Philip J. Willson of Willson & Pechacek, P.L.C., Council Bluffs, and Louis C. Woolf of Woolf, McClane, Bright, Allen & Carpenter, P.L.L.C., Knoxville, Tennessee, for appellee Amoco Oil Company and Mobil Corporation.

Considered en banc.

HARRIS, Justice.

Withdrawal of counsel can wreak havoc on the orderly processing of cases in a busy trial court, and it seems that a withdrawal is most likely to occur in civil cases where extremely complicated litigation is also unpromising for one side or the other. Retaining counsel on a continuing basis in such a suit is often problematic and frustrating to a litigant. It can also be frustrating to a trial judge, hard pressed in the important task of moving cases toward resolution. An especially critical point is reached when the fear arises that some tactical advantage is sought by way of counsel's withdrawal. At that point the judge must sort out tactical delays from honest struggles to provide counsel.

In the present case the court carefully sorted out these two possibilities up to a point. Then the court summarily dismissed the case, a dismissal that is challenged in this appeal. The appeal is grounded on a claim that the plaintiffs were denied a chance to proceed pro se. Although we are far from satisfied with the circumstances surrounding the dismissal, we affirm because we find no indication they ever asserted a right to represent themselves or that the court misled them on the point.

In 1991 John Metz was diagnosed with neutropenia. The disease was believed to be the result of his exposure to benzene and other toxic contaminants while he maintained and repaired storage tanks and petroleum distributor facilities for various companies. The Metz family then brought this action, alleging the defendants were negligent in numerous ways for causing the injuries.

After extensive discovery and many delays, trial was set to commence in November 1996. In February 1996 plaintiffs' three attorneys moved to withdraw because they believed medical causation could not be shown. The court granted the motion in an order providing that plaintiffs find new counsel within sixty days or their action would be dismissed. The court noted that "a few additional days would be considered appropriate" if plaintiffs were close to obtaining counsel. Plaintiffs encountered difficulties finding another attorney and sought to extend the sixty-day deadline. Following a hearing, the court granted the motion, ordering them to secure new counsel by July 1, 1996, or the case would be dismissed. On July 19, 1996, the court sua sponte dismissed the case because of plaintiffs' failure to obtain counsel.

In January 1997 plaintiffs, through their present counsel Laura L. Pattermann, moved pursuant to Iowa rule of appellate procedure 10(c) to expand the appellate record. Plaintiffs sought to allow affidavits to serve as a reference in a statement of evidence of what occurred at unreported April 2 and May 30 hearings during which the court considered the matters forming the basis for the extension orders. Attached to the rule 10(c) motion were affidavits of John and Joanne Metz and of their former attorneys. The defendants resisted the inclusion of the affidavits as part of the appellate record and the district court denied the motion as untimely. A challenge to this determination was ordered to be submitted as a part of this appeal.

We are obliged to reject the proffered affidavits as a part of the appellate record. Plaintiffs' rule 10(c) motion was not filed until January 23, 1997 (the same day plaintiffs filed their proof brief with us). ¹ The plaintiffs' notice of appeal was filed September 18, 1996. The mandatory twenty-day filing requirement under rule 10(c) was clearly violated.

I. John Metz contends the district court deprived him ² of his constitutional right to represent himself under the due process clause of the fifth and fourteenth amendments of the United States constitution and article 1, section 9 of the Iowa constitution. But the record is devoid of any instance in which Metz asserted that right. There is nothing in the record to suggest that the trial court was alerted to any wish on Metz's part to proceed pro se. Any such wish would have seemed contrary to Metz's wishes at the time. He had been represented by successive counsel from the time the litigation was instituted. The trial court had no reason to suppose Metz's prior attorney would have misled him concerning his right to proceed pro se if he wished to do so.

Metz nevertheless maintains the April 2 order, directing plaintiffs to secure new counsel within a certain period or their case would be dismissed, effectively violated his constitutional right to represent himself. The contention is that the judge's order amounted to a veto of his own uncommunicated wish to proceed pro se. We do not see how the order can be so understood. ³ The fact is that Metz had, until then, chosen and managed to secure counsel. His inability to continue in this effort presented both him and a busy court with problems. But, to accept Metz's due process argument under the circumstances would require us to lay on trial courts a burden to advise a litigant on the record of the right to proceed pro se, even for a litigant like Metz who had already had much access to advice of counsel in the matter. Just as the federal courts have, we decline to do so. See United States v. Martinez, 883 F.2d 750, 757-58 (9th Cir.1989), vacated on other grounds 928 F.2d 1470 (1991).

The flaw in the assignment is that the due process claim was never asserted in district court and was therefore waived. Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996); Donovan v. State, 445 N.W.2d 763, 767 (Iowa 1989); Miller v. Wellman Dynamics Corp., 419 N.W.2d 380, 384 (Iowa 1988). The challenge in district court was grounded only on a claim that counsel had been secured and therefore the order had been complied with. The trial court challenge did not hint, though it certainly could have, that the court lacked authority to order the plaintiffs to obtain counsel and also lacked authority to dismiss their action if they failed to do so. In point of fact the court clearly lacked authority to do either. A litigant has a right to appear in court pro se. Arthaud v. Griffin, 202 Iowa 462, 464, 210 N.W. 540, 541 (1926). ⁴

Nevertheless, even if the order to secure counsel was thus subject to challenge, the court's authority to enter it was never questioned, not even when the order was challenged on other grounds in Metz's motion to set it aside. So the dismissal was authorized under Iowa rules of civil procedure 216 and 230 (authorizing dismissal of action as sanction for disobeying any court order).

We emphasize that we do not approve the manner in which the matter was handled. The proper procedure for a court at such a time is simply to set the cause for trial and advise the parties it will be tried then--with or without counsel. The court should obviously make it clear at such a time that it is not recommending pro se representation.

The due process challenge fails.

II. Error was not preserved in a number of other assignments as well. For example, the Metz's claim they failed to receive notice and an opportunity to be heard before the default judgment was entered. They assert this failure constituted an abuse of discretion and also violated their due process rights. They assert the district court abused its discretion in entering the default judgment sua sponte. And they claim the district court abused its discretion by entering judgment against them without a finding that their failure to comply with the order was not due to willfulness, fault, or bad faith. As to these assignments, the plaintiffs moved to set aside the default and the motion was submitted on hearing, considered by and ruled upon by the district court. The foregoing contentions were not raised at that time or at any other time in district court. They were therefore waived.

III. Without suggesting any merit in it, we also reject, for want of preservation, plaintiffs' separate claim that the district court abused its discretion in failing to set aside or vacate the default judgment. Our preservation rule requires that issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. Johnston Equip. Corp. v. Industrial Indem., 489 N.W.2d 13, 16-17 (Iowa 1992). Here plaintiffs filed written motions to set aside and vacate the default judgment, but they did not raise the arguments they now present on appeal. In fact plaintiffs' motion to vacate did not set forth any grounds on which relief could be granted under Iowa rule of civil procedure 252. In...