Wharff v. Iowa Methodist Hospital

• Decision Date: 22 May 1974
• Docket Number: No. 55912,55912
• Citation: 219 N.W.2d 18
• Parties: George T. WHARFF, Executor of the Estate of Susan E. Wharff, Appellant, v. IOWA METHODIST HOSPITAL, an Iowa corporation and Barbara Wagner, M.D., Appellees.
• Court: Iowa Supreme Court

Page 18

219 N.W.2d 18

George T. WHARFF, Executor of the Estate of Susan E. Wharff, Appellant, v. IOWA METHODIST HOSPITAL, an Iowa corporation and Barbara Wagner, M.D., Appellees.

No. 55912.

Supreme Court of Iowa.

May 22, 1974.

Gary B. Garrison and Anna I. Shinkle, Des Moines, for appellant.

Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, for appellees.

Heard before MOORE, C.J., and MASON, LeGRAND, REYNOLDSON, and HARRIS, JJ.

MASON, Justice.

This is an appeal by plaintiff from an adverse ruling on his application for reinstatement of this case after it had been dismissed by operation of rule 215.1, Rules of Civil Procedure.

Susan E. Wharff, 11-year-old daughter of Geore T. Wharff, died May 25, 1968, from injuries suffered in a one-car accident on that date. An appeal from judgment notwithstanding the verdict in an earlier cause of action between this plaintiff and different defendants was affirmed on appeal by this court. See Wharff v. McBride, 183 N.W.2d 700 (Iowa 1971). This cause of action concerns alleged negligence of the hospital and attending physician in whose care Susan was intrusted following the accident. A detailed recitation of the proceeding in this action is necessary for examination of the issues.

May 22, 1970, plaintiff, executor of Susan's estate, proceeding pro se, filed an action in Polk County district court alleging negligence and malpractice on the part of the Iowa Methodist Hospital and Barbara Wagner, M.D. June 3 defendants filed a motion to strike, motion for more specific statement and request for oral hearing. September 30 Judge Missildine sustained the two motions in their entirety. Plaintiff did not comply with the order at any time during the next three and one-half months.

January 8, 1971, defendants filed a motion to dismiss alleging plaintiff had failed to comply with the court order in regard to making more specific statements. January 22 Judge Missildine overruled the motion to dismiss.

The same date plaintiff filed amendments to the petition to conform with the court's earlier orders and also struck certain paragraphs and amended and added others. February 18 defendants filed a motion to recast pleadings alleging it was 'almost impossible' to properly respond to plaintiff's pleadings as they existed. March 5 plaintiff, by attorney Roberts, withdrew all previous pleadings and filed a second amended petition as a complete recasting of all prior pleadings. March 16 defendants moved for more specific statement in regard to various allegations of the second amended petition.

Although not shown in this record defendants state a motion for production of documents was likewise filed on this date and sustained by the court on April 5. However, examination of the court file confirms this fact. Plaintiff refers to this motion in his brief and concedes in oral argument before this court that such motion was filed and ruled on. April 2 the trial court sustained defendants' motion for more specific statement in its entirety.

April 13, defendants filed 21 numbered interrogatories to be answered by plaintiff. Plaintiff filed answers to the interrogatories May 26; they were signed only by plaintiff's counsel and not sworn to by plaintiff himself. June 10 defendants filed a motion asking that plaintiff be required to file sworn answers to the interrogatories.

About this time plaintiff discharged attorney Roberts and employed other counsel to represent him.

August 14 the clerk of court mailed to the then counsel of record, apparently Mr. Roberts, the statutory notice pursuant to rule 215.1, R.C.P., informing plaintiff the case would be subject to dismissal if not tried prior to January 1, 1972, unless otherwise ordered. January 3 the case was dismissed.

The orders to make more specific statement of various allegations of the second amended petition and to produce various documents were not complied with at any time prior to the dismissal.

May 12, 1972, plaintiff, by attorney Garrison, appearing for the first time, filed application for reinstatement. Plaintiff stated he had no intention to abandon his claim and that in numerous contacts with counsel he was assured the case was being properly pursued. From these statements it was concluded the case was dismissed from no fault of plaintiff. It was also alleged the case was of such complexity as to make it difficult, if not impossible, even through due diligence, to get to trial before January 1, 1972. The record clearly shows, however, no motion for continuance was ever filed. Finally, the dismissal was allegedly caused by oversight or mistake of plaintiff's counsel. Defendants thereafter filed resistance to the application stating, inter alia, plaintiff had made very little effort in collecting and preparing evidence from persons having knowledge of the circumstances. Trial court denied the application without further comment.

Plaintiff appeals presenting two issues for review in which he contends: (1) the trial court erred in denying plaintiff's application for reinstatement since the court failed to comply with the mandatory provisions of rule 215.1, R.C.P., and (2) the trial court abused its discretion under the facts and circumstances presented.

I. MANDATORY REINSTATEMENT

The final paragraph of rule 215.1, R.C.P., 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 six months from the date of dismissal.'

Reinstatement is mandatory and not discretionary for trial court if the dismissal is shown to be the result of 'oversight, mistake or other reasonable cause.' Rath v. Sholty, 199 N.W.2d 333, 335--336 (Iowa 1972).

The general policy in this jurisdiction has been to allow trial on the merits. In general, a liberal approach is taken in appeals from rulings overturning default (rule 236, R.C.P.) entered because of mistake, inadvertence and excusable neglect. In Rath v. Sholty, 199 N.W.2d at 335--337, this same liberal approach taken in regard to rule 236 appeals was considered as the approach to be followed with respect to reinstatement under rule 215.1, R.C.P., in view of the 1965 amendment.

The operation of the rule 215.1 amendment in a mandatory reinstatement situation and the scope of review in this court are set out in Rath v. Sholty, 199 N.W.2d at 336:

'* * * (T)rial court must initially determine whether the evidence adduced at the hearing constitutes a 'showing' of oversight, mistake or other reasonable cause. This first involves a factual finding which we shall review not de novo, as in equity, but as in a law proceeding. It follows that trial court's findings of fact and inferences inherent therein are binding upon this court if supported by substantial evidence. Rule 344(f)(1), R.C.P. Whether the facts and inferences found constitute 'inadvertence,' 'mistake' or 'other reasonable cause' is not a factual but a legal question on review. 5 C.J.S. Appeal and Error § 1454, p. 591. We have held trial court's interpretation of its findings becomes a question of law which is not conclusive on appeal. * * * (citing authorities).'

Plaintiff urges rule 215.1 is to be afforded the same interpretation as rules 236 and 252, R.C.P. He is correct in regard to rule 236; Rath, 199 N.W.2d at 337 states: 'This court has been liberal in affirming determinations of default-voiding mistake, inadvertence, and excusable neglect in rule 236 appeals. * * * (citing authorities) The same policy shall be followed, within the scope of our permissible review, with respect to reinstatement under the rule 215.1 amendment.'

The basic policy in regard to rule 236 and thus to reinstatement situations under rule 215.1 has been stated to be to use a liberal approach in order to allow trial on the merits. See Rath v. Sholty, supra. In Windus v. Great Plains Gas, 255 Iowa 587, 600, 122 N.W.2d 901, 909, a case involving a petition to vacate a dismissal for want of prosecution, the policy of allowing trial on the merits was qualified and stated to be as follows:

'* * * The rule that courts favor trials on the merits should be qualified to read that courts favor Expeditious trials on the merits, Under settled rules of procedure. It should not be stretched to the point where a judgment will be vacated when the petitioner, through his counsel, has ignored plain mandates of the rule with ample opportunity to abide by them. To do so would be to abrogate the rule and to reward negligence or inattention.' (Emphasis in the original)

See also Haynes v. Ruhoff, 261 Iowa 1279, 1282, 157 N.W.2d 914, 916 and Edgar v. Armored Carrier Corporation, 256 Iowa 700, 706--707, 128 N.W.2d 922, 926.

To a certain extent appeals in rule 236 situations proceed on a case-by-case method due to great variety in factual circumstances. Certain rules, however, are established. It is movant's burden to show good cause for setting aside a default judgment under rule 236. Hobbs v. Martin Marietta Co., 257 Iowa 124, 130, 131 N.W.2d 772, 775--776. A defendant's ignoring a notice under circumstances showing no more than excuse, plea, apology, extenuation, or explanation for failure to timely appear is not sufficient to overturn a default. Haynes v. Ruhoff, 261 Iowa at 1286, 157 N.W.2d at 918. Accident or excusable neglect where the defendant has a good faith intent to defend will justify setting aside a default. The fact a meritorious defense is disclosed and that defendant had honestly intended to present it and had justification for supposing he had made arrangements for its presentation is a circumstance in favor of good faith. Newell v. Tweed, 241 Iowa 90, 95, 40 N.W.2d 20, 23; Tate v. Delli, 222 Iowa 635, 639--640, 269 N.W. 871, 873; see also Annot., 174 A.L.R. 10.

II. The first issue presented for review...