RICHARD KLEIN, Plaintiff-Appellant, vs. ANTHONY WISMAN AND NEAL MENZER, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 7-210 / 06-1245
Filed May 9, 2007
RICHARD KLEIN,
Plaintiff-Appellant,
vs.
ANTHONY WISMAN
AND NEAL MENZER,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Michael R.
Mullins, Judge.
Plaintiff appeals the dismissal of his tort action under Iowa Rule of Civil
Procedure 1.944. AFFIRMED.
Craig Arbuckle, Washington, for appellant.
Terri C. Davis and Sarah Gayer of Shuttleworth & Ingersoll, P.L.C., Cedar
Rapids, for appellees.
Considered by Vogel, P.J., and Vaitheswaran, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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BROWN, S.J.
I.
Background Facts & Proceedings
On June 17, 2003, Richard Klein filed a tort suit against Anthony Wisman
and Neal Menzer based on a motor vehicle accident. On July 20, 2004, the
parties received notice the case would be automatically dismissed under Iowa
Rule of Civil Procedure 1.944 unless it was tried by January 1, 2005.
Trial was scheduled for October 19, 2004, but on October 1, 2004, Klein
requested a continuance to complete discovery. The case was rescheduled to
March 22, 2005. On March 11, 2005, on Klein’s motion, an order was entered
again continuing the trial date and stating plaintiff would prepare a new
scheduling order.
At a pretrial conference in March 2005, the court informed the parties the
case had been automatically dismissed on January 1, 2005.
Klein filed an
application on May 31, 2005, seeking to reinstate the case. The reason given
was that a continuance of the March 22 trial date had been requested due to
family health matters. The district court overruled the application because it did
not cite any of the grounds for relief contemplated in rule 1.944(6).
On August 15, 2005, Klein filed another application seeking to reinstate
the case.
The court found the application was untimely under rule 1.944(6)
because it was filed more than six months from the date of dismissal. Klein
appeals the dismissal of his tort suit under rule 1.944.
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II.
Standard of Review
Our scope of review in this action is for the correction of errors at law.
Iowa R. App. P. 6.4; Duder v. Shanks, 689 N.W.2d 214, 217 (Iowa 2004).
III.
Merits
A.
Klein asserts his case should not have been dismissed under rule
1.944 because it had been assigned a trial date on March 22, 2005, after the
automatic dismissal date of January 1, 2005.
A similar issue was discussed in Ray v. Merle Hay Mall, Inc., 621 N.W.2d
696, 698-99 (Iowa Ct. App. 2000), as follows:
A request for a trial date, without further comment, can be granted
as a ministerial function of the court. In contrast, a request for a
continuance under rule [1.944], requires a party to set forth reasons
why a case should be given a longer life than intended under the
declared policy of the rule.
Ray failed to present her reasons to the court as to why she
should be granted a continuance. The scheduling order Ray relies
on did not satisfy the requirements under the rule. Other than
containing the date the petition was filed, there was no indication in
the scheduling order alerting the judge that the case was subject to
imminent dismissal. Simply agreeing on a trial date without
including “grounds for continuance” circumvents the requirements
under rule [1.944]. Ray had the burden of keeping her case alive
and avoiding an automatic dismissal under rule [1.944].
Accordingly, the stipulation as to a trial date does not save her case
from automatic dismissal under rule [1.944].
(Citations omitted.) See also Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa
1987) (“[A] case may not be continued after a [1.944] notice has been given
without an order of court upon application and notice.”); Gold Crown Props. v.
Iowa Dist. Court, 375 N.W.2d 692, 693 (Iowa 1985) (noting continuance order
specifically stated action would not be dismissed under rule 1.944).
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Klein’s motion for continuance, filed on October 1, 2004, did not mention
the case would be dismissed if not tried prior to January 1, 2005, and gave no
reasons “why the case should be given a longer life than intended under the
declared policy of the rule.”
Ray, 621 N.W.2d at 698.
The motion simply
requested a continuance past the then-scheduled trial date of October 19, 2004,
in order to complete discovery. In addition, in assigning a new trial date of March
22, 2005, the order for continuance did not address the operation of rule 1.944.
The order for continuance did not operate to remove the case from the mandate
of rule 1.944. We conclude the district court did not err in ruling the case had
been automatically dismissed on January 1, 2005.
B.
Rule 1.944(6) 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.” Klein’s
first application to reinstate, filed on May 31, 2005, did not give any reasons to
show the dismissal was the result of oversight, mistake, or other reasonable
cause, nor did it refer to any factors that may have justified relief under the
discretionary authority granted by the rule. See Sladek v. G & M Midwest Floor
Cleaning, Inc., 403 N.W.2d 774, 778 (Iowa 1987) (stating both the mandatory
and discretionary options in the rule require a showing of reasonable diligence);
see also O'Brien v. Mullapudi, 405 N.W.2d 815, 819 (Iowa 1987) (noting
application to reinstate was not verified nor accompanied by affidavits); Tiffany v.
Brenton State Bank of Jefferson, 508 N.W.2d 87, 90-91 (Iowa Ct. App. 1993)
(applicant has burden of proof to establish basis for reinstatement).
The
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unverified application stated only that the case had not been heard on March 22,
2005, due to family health matters. By March 22, 2005, however, the case had
already been automatically dismissed. We find no error in the district court’s
order overruling the application to reinstate because the motion did not cite any
of the grounds contemplated by rule 1.944(6).
C.
The ruling on the first application to reinstate provided the
application was “overruled, without prejudice to resubmit a motion compliant with
the rule within the time frames required by the rule.”
application to reinstate on August 15, 2005.
Klein filed a second
Rule 1.944(6) provides an
application for reinstatement must be made within six months from the date of
dismissal. The district court determined the second application was untimely
because it was filed more than six months after the case had been dismissed on
January 1, 2005. Green v. Tri-County Cmty. Sch. Dist., 315 N.W.2d 779, 781
(Iowa 1982) (holding court has no discretion to reinstate without a timely
application). We affirm the district court’s ruling on this issue.
D.
Klein claims application of rule 1.944 under the circumstances of
this case is contrary to equity, justice, and basic fairness. The supreme court
has stated, “The rule is of uniform application throughout the state and is not
harsh or unfair. It is a rule necessary to expedite the trial of cases brought to
court.” Talbot v. Talbot, 255 Iowa 337, 341, 122 N.W.2d 456, 459 (1963). The
purpose of rule 1.944 “is to promote the expeditious trial of cases on the merits
by clearing the docket of dead cases and assuring the ‘timely and diligent
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prosecution of those cases that should be brought to a conclusion.’” Duder, 689
N.W.2d at 218 (citations omitted).
Furthermore, application of rule 1.944 is mandatory. Id. The district court
does not have discretion to avoid application of the rule based on principles of
equity, justice, or basic fairness. See Green, 315 N.W.2d at 781; Windus v.
Great Plains Gas, 254 Iowa 114, 123, 116 N.W.2d 410, 415 (1962) (“The
operation of the rule is not discretionary with the trial court.”).
We affirm the decision of the district court.
AFFIRMED.
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