Opinion
No. 3-017 / 02-0271
Filed February 12, 2003
Appeal from the Iowa District Court for Tama County, Amanda Potterfield, Judge.
Brian Wilimek appeals the district court decision which dismissed his suit under Iowa Rule of Civil Procedure 1.944 (formerly rule 215.1). AFFIRMED.
R. Eugene Knopf of Walker, Knopf Billingsley, Newton, for appellant.
Richard J. Sapp and John B. Tuffnell of Nyemaster, Goode, Voigts, West, Hansell O'Brien, P.C., Des Moines, for appellee Ciba Geigy, Inc.
John B. Grier of Cartwright, Druker Ryden, Marshalltown, and Timothy W. Hamann of Clark, Butler, Walsh Hamann, Waterloo, for appellees Dankers.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Brian Wilimek appeals the district court decision which dismissed his suit under Iowa Rule of Civil Procedure 1.944 (formerly rule 215.1). He claims the case should not be dismissed because he did not receive a notice before the dismissal. He also claims the case had been stayed and was not subject to rule 1.944. We affirm.
I. Background Facts Proceedings
Wilimek was injured on September 17, 1989, while employed by Danker Farms (Danker). The injury occurred at a grain facility owned by Ciba Geigy, Inc. Wilimek filed the present action on January 9, 1991, against Danker and Ciba Geigy. He also filed a petition with the workers' compensation commissioner seeking benefits. In 1993 the district court stayed this action pending resolution of the workers' compensation case.
In Danker v. Wilimek, 577 N.W.2d 634, 636-37 (Iowa 1998), the supreme court remanded the workers' compensation case to the district court for further proceedings. The case came up again on appeal, and an unpublished opinion was issued. The supreme court denied further review of the case on March 2, 2001.
Each year from 1993 to 1999, Wilimek moved for a continuance to preserve the case under rule 1.944. On January 6, 2000, the district court ruled:
IT IS, THEREFORE, ORDERED that the above-entitled case is removed from the operation of Iowa Rule of Civil Procedure [1.944] and continued into the calendar year 2000, to be tried on or before December 31, 2000, or said cause will stand dismissed.
Wilimek did not take any further action before December 31, 2000, and the case was automatically dismissed.
In December 2001 almost a year after the case was dismissed, Wilimek filed a motion to extend the case under rule 1.944. The district court entered an ex parte order granting the continuance. Ciba Geigy filed a motion to set aside the court's ruling, pointing out that the case had been dismissed. The court determined the case had been automatically dismissed on January 1, 2001, and that it did not have authority to grant a further continuance. The court denied Wilimek's motion to reconsider. He now appeals.
II. Standard of Review
This action was filed at law, and our review is for the correction of errors at law. Iowa R.App.P. 6.4.
III. Notice from Clerk
Rule 1.944 requires dismissal of any case that has not proceeded to trial within the prescribed time period. Ray v. Merle Hay Mall, Inc., 621 N.W.2d 696, 697 (Iowa Ct.App. 2000). Our court has previously stated:
Dismissal under rule [1.944] is automatic and needs no order of dismissal. The operation of rule [1.944] is not discretionary with the trial court, but the court does have discretion to grant continuances for just cause upon timely applications. An order continuing a case to a date certain does not remove the case from the operation of rule [1.944]; it merely moves the mandatory dismissal date to the date certain. If a plaintiff does nothing, the case is dismissed by operation of law on the date certain. A subsequent continuance may be obtained to avoid automatic dismissal on the date certain.
Sanchez v. Kilts, 459 N.W.2d 646, 649 (Iowa Ct.App. 1990) (citations omitted). The plaintiff has the burden to keep the case alive and avoid automatic dismissal under the rule. Ray, 621 N.W.2d at 698.
Wilimek claims rule 1.944 does not apply in this case because in August 2000 he did not receive notice from the clerk of court that the case was subject to dismissal, as required by rule 1.944(2). This argument was rejected in Allied Gas Chemical Co. v. Federated Mut. Ins. Co., 365 N.W.2d 26, 30-31 (Iowa 1985), where the supreme court held:
Wilimek admits he received a try or dismiss notice in each of the years prior to 2000.
if a continuance is granted on certain terms and those terms are not met, a case subject to rule [1.944] will be dismissed by operation of law whether or not a subsequent "try or dismiss" notice had been sent. The reason is that the effect of the continuance was merely to hold the dismissal in suspension on certain conditions. When those conditions are not met, the dismissal is automatic.
Here, the dismissal was held in suspension on the condition the case was tried before December 31, 2000. This condition was not met, and the case was automatically dismissed, whether or not Wilimek received a try or dismiss notice in August 2000.
IV. Operation of Stay
Wilimek contends the stay issued in 1993 removed the case from the application of rule 1.944. He relies on Allied Gas, which states:
While a rule [1.944] dismissal is by operation of law and requires no affirmative act by the clerk or court, a stay of "further proceedings" by this court under Iowa Rule of Appellate Procedure [6.2(2)] will nevertheless prevent that dismissal from occurring.
Allied Gas, 365 N.W.2d at 30 (citation omitted).
Allied Gas applied rule 1.944(3)( a), which provides a case will not be dismissed for failure to prosecute if it is "pending on appeal from a court of record to a higher court or under order of submission to the court." There, the case was before the supreme court on interlocutory appeal at the time the dismissal order was entered. In the present case, at the time of the dismissal the case was not on appeal and rule 1.944(3)( a) does not apply. We note rule 1.944 does not provide for an exception to dismissal for a stay in situations other than a stay of district court proceedings while a case is pending on appeal. We determine the stay entered in this case did not render rule 1.944 inapplicable.
We affirm the decision of the district court.