GRETCHEN THOMPSON , Plaintiff - Appell ant , vs. DR. GARY VANHOFWEGEN and VANHOFWEGEN FAMILY DENTISTRY , Defendant s - Appell ees .
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IN THE COURT OF APPEALS OF IOWA
No. 8-823 / 07-2014
Filed November 13, 2008
GRETCHEN THOMPSON,
Plaintiff-Appellant,
vs.
DR. GARY VANHOFWEGEN and
VANHOFWEGEN FAMILY DENTISTRY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, John P. Duffy, Judge.
Plaintiff appeals from the dismissal of her dental malpractice claim.
AFFIRMED.
Patricia J. Matassarin, Canyon Lake, Texas, and Phil C. Redenbaugh of
The Law Office of Phil C. Redenbaugh, P.C., Storm Lake, for appellant.
Ned A. Stockdale of Fitzgibbons Law Firm, Estherville, for appellees.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
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MAHAN, J.
Gretchen Thompson appeals from the Iowa Rule of Civil Procedure 1.944
dismissal of her dental malpractice claim. She contends the district court erred in
refusing to reinstate the case following dismissal. She also contends the district
judge should have recused himself. We affirm.
I. Background Facts and Proceedings.
This claim was filed on April 16, 2003, alleging professional malpractice
stemming from dental treatment received by Thompson. Thompson is allergic to
latex and alleged she was improperly exposed to latex during her dental
treatment provided by defendants.
The first try-or-dismiss notice was sent out by the clerk of court on July 22,
2004, with a dismissal date of January 1, 2005. The notice provided, “[p]ost
December 31 trial or trial-setting conference dates will not serve to avoid
dismissal.”
Trial was set in this matter for October 5, 2004. Defendants’ motion for a
continuance and to be relieved from the requirements of rule 1.944(2) was
granted on September 16, 2004. The order granting these motions provided:
“this case shall not be subject to dismissal pursuant to [rule 1.944] if tried on or
before January 1, 2006.” The case was again set for trial on August 30, 2005.
Many filings followed, including: defendants’ application for assignment to
a single judge in December 2004, noting that two judges had recused
themselves from further proceedings and that numerous issues remained to be
determined before the case was ready for trial; District Court Judge David A.
Lester’s February 5, 2005 denial of defendants’ motion for summary judgment,
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finding genuine issues of material fact existed as to whether the defendants had
breached the standard of dental care and as to the source of latex that caused
the allergic reaction Thompson claims she suffered; defendants’ motion for
partial summary judgment filed January 28, 2005; the designation of District
Court Judge John P. Duffy to rule on all matters in this case, filed February 10,
2005; and a notation that a hearing on defendants’ partial summary judgment
motion was held on April 4, 2005.
On August 15, 2005, Thompson, due to personal circumstances, moved to
continue the trial date. On September 16, 2006, the court entered a written ruling
continuing the trial to January 10, 2006. The trial date was later continued until
January 11, 2006, by the district court.
In December 2005 the district court denied defendants’ motion for partial
summary judgment. Thereafter the parties filed several motions to determine the
admissibility of evidence, and the district court ordered Thompson to recast her
petition, finding the amended petition “prolix, confusing and constitutes multiple
claims.”
Following hearings on outstanding motions, which were held on January 3
and January 5, 2006, the district court entered several orders on January 11,
2006.
The court ruled on Thompson’s oral application to reinstate the case
pursuant to rule 1.944(6). The district court concluded:
The dismissal of this case was the result of oversight and other
reasonable cause, because the case was specifically set for trial on
January 10, 2006, without an extension of the prior Rule 1.944
dismissal order. The court finds the case should be reinstated.
IT IS FURTHER ORDERED that the case shall be tried on or
before January 1, 2007. If not so tried, the case shall be dismissed
without further notice to the parties.
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In ruling on defendants’ motions in limine, the court determined, in part,
that: Thompson’s treating physician could not offer opinions as to the causation
of her injury because the physician had not been disclosed as an expert in
accordance with Iowa Rule of Civil Procedure 1.508; Thompson was not allowed
to introduce evidence of parts of conversations with Dr. Brandy Lancaster,
D.D.S., which would have gone to the source of latex exposure, because those
statements had previously been determined to be inadmissible because they
were materially false, misleading, and unreliable; Thompson could not offer any
opinions of Dr. Amy Addington, Thompson’s sister, because she had not been
designated or listed as an expert witness; and Thompson could not offer
anticipated medical opinions of her mother, Janet Watts, R.N., because she too
had not been disclosed under rule 1.508.
Also on January 11, 2006, a hearing was held on Thompson’s motion to
continue the trial in light of the court’s evidentiary rulings and other personal
reasons. The court ordered “trial of the case, set for this date, is continued to a
date to be determined by the Court Administrator’s office.”
Dissatisfied with the court’s rulings, Thompson filed an application for
interlocutory appeal. Interlocutory review was denied by the supreme court on
June 14, 2006. Procedendo issued on June 21, 2006.
Following the issuance of procedendo, a trial scheduling conference was
held (after two continuances) on October 3, 2006. Trial was set for November 6,
2007.
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On January 3, 2007, the clerk of court sent out a dismissal notice under
rule 1.944(2).
On January 12, 2007, Thompson filed her application for
reinstatement, alleging “inadvertence and/or oversight” and contending the clerk
failed to issue requisite notice. Thompson’s application acknowledges that the
district court’s January 11, 2006 ruling set a January 1, 2007 dismissal date. The
application to reinstate was resisted.1
A hearing was held on the application for reinstatement on May 14, 2007.
The transcript from that hearing includes the court’s statement that it would “try to
get a ruling out within the next week.”
In September 2007 Thompson filed several motions:
a motion to
disqualify defense counsel; a motion for continuance of the November 2007 trial
date; and a motion seeking assignment to a new judge or recusal of the currently
assigned judge.
Thompson noted that there was yet to be a ruling on her
application for reinstatement and she asserted prejudice and bias, listing the
delay in rulings and a number of other adverse rulings, including those excluding
evidence.
On October 13, 2007, the district court ruled on Thompson’s application to
reinstate. The court first concluded that no notice by the clerk was required
before dismissal in this instance, citing Wilimek v. Danker, 671 N.W.2d 25 (Iowa
2003).
The court next determined Thompson’s application to reinstate was
timely under rule 1.944, but that she had failed to establish the dismissal was the
result of oversight, mistake, or other reasonable cause. The court noted very
1
Defendants filed a third motion for summary judgment on April 19, 2007, asserting
Thompson had no admissible evidence on central issues of her claim.
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little activity in the case following the continuance, which had been granted on
January 11, 2006: there had been a ruling on defendants’ motion for sanctions
and plaintiff’s motion to reconsider that ruling imposing sanctions. The court also
noted that following the denial of interlocutory appeal and subsequent civil trial
setting order, Thompson had failed to file a timely motion to continue the case
under rule 1.944(2). The court concluded:
Based on the number of times trial of this case has been continued
and the Plaintiff’s request for a continuance of the trial set for
November 6, 2007, it becomes clear that the Plaintiff has failed to
pursue the completion of this case in a timely manner.
The court also denied Thompson’s motion to recuse, finding the matters alleged
did not constitute grounds for recusal.
The court ruled, “The case stands
dismissed.”
Thompson now appeals.
II. Analysis.
In Wilimek v. Danker, 671 N.W.2d at 27, the court held:
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 has been
sent by the clerk.
We agree with the district court that its rulings of January 11, 2006, gave clear
notice to the parties that the case would be subject to dismissal without further
notice on January 1, 2007, if not tried by that date. Consequently, the case was
dismissed by operation of law on January 1, 2007.
Thompson argues, however, that she has established “oversight, mistake,
or other reasonable cause” and, therefore, reinstatement is mandatory under rule
1.944. We disagree. Iowa Rule of Civil Procedure 1.944(6) provides:
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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.
The district court concluded Thompson failed to establish that dismissal was a
result of oversight, mistake, or other reasonable cause, but Thompson offers:
lead counsel is admitted Pro Hac Vice in Iowa and is licensed in
Kansas and Texas. No such dismissal provisions are present in
either state. After reviewing the law relating to Rule 1.944, after the
dismissal, she now has a better concept of the Rule 1.944 principal
[sic]. The failure to obtain an order continuing the case prior to
December 31, 2006 was the result of inadvertence and mistake—
mistaken assumptions concerning the two Orders entered on
January 11, 2006.
We find several flaws in this offer.
First, to assert that lead counsel
became familiar with rule 1.944 only after this dismissal is contrary to counsel’s
averment made in her application for admission pro hac vice. The application for
admission pro hac vice requires an “averment as to the out-of-state lawyer’s
familiarity with the rules of professional conduct, . . . the applicable local rules,
and the procedures of the court . . . before which the out-of-state lawyer seeks to
practice.” Iowa Ct. R. 31.14(5)(m).
Secondly, this was not the first rule 1.944 dismissal of the case and
application for reinstatement.
We do not find “oversight, mistake, or other
reasonable cause” where the same mistake is repeated.
Finally, it is precisely for the reason that out-of-state counsel may not be
as familiar with our rules that we require an in-state lawyer to appear and remain
“responsible to the client and responsible for the conduct of the proceeding.”
Iowa Ct. R. 31.14(3).
Thompson does not allege that local counsel was
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unfamiliar with rule 1.944 dismissal or the methods by which dismissal could be
avoided.
Under these circumstances, we conclude the district court properly
found plaintiff had not established that dismissal was “the result of oversight,
mistake, or other reasonable cause.” Although review of the denial of mandatory
reinstatement is for errors of law, we conclude reinstatement under rule 1.944(6)
was not mandatory. O’Brien v. Mullapudi, 405 N.W.2d 815, 817 (Iowa 1987);
Ray v. Merle Hay Mall, Inc., 621 N.W.2d 696, 699 (Iowa Ct. App. 2000).
The district court could have reinstated the case at its discretion under rule
1.944(6). We have thoroughly reviewed the record and find no abuse of the
court’s discretion in refusing to reinstate this case.
We also find the district court did not err in refusing to recuse. We do note
that we do not condone lengthy delays in ruling on pending matters; yet, we
recognize the extensive workload of our district courts. Nothing in the record
suggests the delays herein were due to improper prejudice or bias against the
plaintiff or that the rulings of the court were the result of prejudice or bias. We
affirm.
AFFIRMED.
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