Opinion
No. 2-1011 / 02-0823
Filed January 15, 2003
Appeal from the Iowa District Court for Woodbury County, Gary Wenell, Judge.
Defendants appeal the district court denial of their motions to dismiss, which alleged failure to timely effectuate service of process. REVERSED.
Timothy A. Clausen of Klass, Stoik, Mugan, Villlone, Phillips, Orzechowski, Clausen Lapierre, L.L.P., Sioux City, and Kathleen Roe of Hellige, Lundberg, Meis, Erickson Frey, Sioux City, for appellants.
Bruce G. Thomas of Thomas Nelson, Sioux City, for appellees.
Considered by Vogel, P.J., and Zimmer and Eisenhauer, JJ.
Defendants Eunice Haupert and Darrell Peters moved to dismiss the petition of plaintiffs Joan and Mark O'Harrow, because Haupert was not served until 128 days, and Peters was not served until 196 days, after the petition was filed. While the district court acknowledged service as to both defendants was presumptively abusive, it found the defendants had not suffered any prejudice and determined the plaintiffs had demonstrated good cause for delay. Accordingly, it denied the motions to dismiss. Haupert and Peters sought and obtained interlocutory review of the district court's decision. We review the district court's decision for correction of errors at law and assess whether the court's findings are supported by substantial evidence. Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000).
As service was made after ninety days, it is indisputable the delays were presumptively abusive. See Iowa R.Civ.P. 1.302(6); Meier v. Senecaut, 641 N.W.2d 532, 542 (Iowa 2002). Accordingly, the only question before this court is whether substantial evidence supports the trial court's finding that the plaintiffs demonstrated good cause for the delays. Meier, 641 N.W.2d at 542. Good cause requires a showing by the plaintiffs that they have:
The test, as outlined by the supreme court, requires only a determination as to whether good cause was established by the plaintiffs. Meier, 641 N.W.2d at 542. There is no requirement the defendants demonstrate prejudice. Id.
taken some affirmative action to effectuate service of process upon the defendant[s] or have been prohibited, through no fault of [their] own, from taking such an affirmative action. Inadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service have generally been waived as insufficient to show good cause. Id. (citations omitted).
In reviewing the record, we note no transcript was made of the hearing on the motion to dismiss, and plaintiffs appended no affidavits or other form of proof to their resistances to the motions to dismiss. However, defendants presented an uncontested statement of evidence pursuant to Iowa Rule of Appellate Procedure 6.10(3). In reviewing that statement and other pertinent filings, we conclude the district court must be reversed.
The plaintiffs' attorney asserted that, due to his father's illness, preparation of the documents for service was delayed until a little over one month after filing. Service was not made at that time, even though something under sixty-days remained in the ninety-day period, as counsel's process server had suffered a stroke. Because the attorney's staff erroneously informed him there was not a ninety-day service requirement, he decided to wait for the process server to recover before sending him the papers to be served. Counsel offered no other explanation as to why he did not attempt service through the local sheriff's office or another process server. After the process server's recovery, service in Iowa could be achieved on Haupert only as, by then, Peters was wintering in Arizona. Peters was served shortly after his return to Iowa. Both defendants were available for service at their home residences throughout the ninety-day service period, and both were ultimately served at those residences.
Essentially, plaintiffs admit they made no attempt to effectuate service during the ninety-day period, but seek to excuse this failure because counsel was mistaken about the ninety-day requirement and because one of many possible avenues of service was unavailable until, apparently, 128 days after filing. Putting aside the fact ignorance of the ninety-day requirement does not constitute good cause, we note that, even before Iowa Rule of Civil Procedure 1.302 set ninety days as a presumptively-abusive threshold, Iowa courts consistently found delay of service beyond 120 days to be presumptively abusive. Becker v. Becker, 603 N.W.2d 627, 628 (Iowa 1999).
More importantly, the plaintiffs were not prevented from attempting service during the first ninety days after filing. They simply chose not to do so. There is no evidence Peters' absence from the state would have interfered with the plaintiffs' attempts at service, if those attempts had been made during the first ninety days after filing.
The record simply does not contain substantial evidence to support a good cause finding. Accordingly, the district court's ruling must be reversed. We remand this matter to the district court for dismissal of the plaintiffs' petition as to Haupert and Peters.