DONNELLE HOFFMAN, Plaintiff-Appellee, vs. TODD CARLOCK, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-641 / 08-1883
Filed September 17, 2009
DONNELLE HOFFMAN,
Plaintiff-Appellee,
vs.
TODD CARLOCK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Gary D. McKenrick
(motions for additional time to serve original notice and for service by publication)
and David H. Sivright Jr. (motion to dismiss), Judges.
In this interlocutory appeal, Todd Carlock contends the district court erred
in denying his motion to dismiss. AFFIRMED.
James L. Pillers of Pillers Law Offices, P.C., Clinton, for appellant.
Donnelle Hoffman, Clinton, pro se.
Considered by Vogel, P.J., Potterfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
HUITINK, S.J.
In this interlocutory appeal, Todd Carlock contends the district court erred
in denying his motion to dismiss.1 We affirm.
I. Background Facts and Proceedings.
On May 7, 2007, Donnelle Hoffman filed suit against Todd Carlock
asserting claims of fraud, undue influence, and breach of fiduciary duty. Hoffman
asserted the two had an intimate relationship from September 2005 through
November 2006, during which she alleges Carlock misappropriated monies she
obtained as a result of a settlement after she sustained serious personal injuries
in a motor vehicle collision.
On February 7, 2008, the district court issued a notice of pending
dismissal for case inactivity. On February 27, 2008, the court issued an order
vacating the notice of pending dismissal.
On February 29, 2008, Hoffman filed motions for extension of timelines for
service and for service by publication. The motions were supported by affidavits
noting numerous unsuccessful attempts at personal service upon Carlock—first
in Iowa, then in Minnesota.
The court granted the motion for extension of
timelines finding that “Personal Service has been attempted by three different
Sheriff Departments and one Private Process Server but each has been
unsuccessful at serving Defendant.”
The court also granted the motion for
service by publication based upon the same finding.
1
Carlock’s appellate brief states the issue is whether the district court “erred as a matter
of law when it overruled defendant’s Motion to Quash Service (Motion to Dismiss) based
on plaintiff’s failure to comply with Iowa R. Civ. P. 1.302(5).” The district court treated
the filing as a motion to dismiss, as will we.
3
Notice of the suit was published in the Clinton Herald (Iowa) on May 15,
22, and 29, 2008. Notice of the suit was published in the Woodbury Bulletin
(Minnesota) on May 21 and 28, and June 4, 2008.
On June 18, 2008, Carlock filed a motion to quash service of process and
dismiss the action, asserting:
1. Plaintiffs’ Petition at Law was filed May 2, 2007.
2. No personal service has been had upon the Defendant.
....
5. Defendant was a resident of Clinton County, Iowa for
more than 90 days after the date of filing of the Petition at law.
....
9. Plaintiff obtained an order of the court to serve the
Defendant, Todd Carlock, by publication in Iowa after Defendant
moved from Iowa.
10. Publication is not personal service as required under
Iowa Rule 1.305 or Iowa Rule 1.306, within or without the state of
Iowa.
11. Serving the Defendant more than one year after the date
of the filing of the Petition at Law is not consistent with fairness or
Iowa law. . . .
12. That service on an individual out of state by publication
(within the state of Iowa) seeking a money judgment is in violation
of the due process parameters of the Iowa Constitution and the
United States Constitution.
13. The Defendant has insufficient “minimum contacts” with
the State of Iowa for the court to exercise jurisdiction over him.
Following a hearing, the district court ruled: (1) while the plaintiff’s motion
for extension of time to accomplish service of original notice was untimely, the
district court impliedly found good cause to grant plaintiff an extension of time to
complete service by publication; (2) the defendant had sufficient contacts with the
state of Iowa to invoke the court’s jurisdiction; and (3) the court authorized
service of notice by publication, and the plaintiff published notice in both Iowa
and Minnesota and, consequently, defendant was not denied due process.
4
Carlock filed an application for interlocutory appeal, which the supreme
court granted. The case was transferred to this court. Carlock contends the
district court erred as a matter of law in overruling his motion to dismiss based on
Hoffman’s failure to comply with Iowa Rule of Civil Procedure 1.302(5). We
affirm.
II. Scope and Standard of Review.
We review a motion to dismiss for failure to effect timely service of
process for the correction of errors at law. Wilson v. Ribbens, 678 N.W.2d 417,
418 (Iowa 2004); Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000); Henry v.
Shober, 566 N.W.2d 190, 191 (Iowa 1997).
Where the district court makes
findings of fact, those findings are binding upon us so long as they are supported
by substantial evidence. Wilson, 678 N.W.2d at 418. We are not, however,
bound by the district court’s legal conclusions or application thereof. Id.
III. Merits.
We begin our analysis with the recognition the Iowa Rules of Civil
Procedure “are to be liberally construed for the purpose of promoting the speedy
determination of litigation upon its merits. . . .” Id. at 420.
A civil action is commenced when a petition is filed in the district court.
Iowa R. Civ. P. 1.301(1). The plaintiff must also serve the defendant with notice
the action was filed. See Iowa R. Civ. P. 1.302. Our rules of civil procedure
expressly require plaintiffs to effect service within ninety days after the filing of
the petition, or risk dismissal. Iowa R. Civ. P. 1.302; see Meier v. Senecaut, 641
N.W.2d 532, 541 (Iowa 2002). If good cause is shown for failure of service within
the ninety days, the court must grant an extension. Wilson, 678 N.W.2d at 420
5
(“The present rule clearly requires a court to grant an extension to the ninety-day
requirement on a showing of good cause.”)
“Good cause” means “[t]he plaintiff must have taken some affirmative
action to effectuate service of process upon the defendant or have been
prohibited, through no fault of his [or her] own, from taking such an affirmative
action.” Henry, 566 N.W.2d at 192-93 (citation omitted). When the failure to
complete service in a timely fashion is a result of the conduct of a third person,
i.e., the defendant has evaded service of the process or engaged in misleading
conduct, good cause is “likely (but not always) to be found.” Wilson, 678 N.W.2d
at 421 (citation omitted). So, too, when “the plaintiff has acted diligently in trying
to effect service or there are understandable mitigating circumstances.” Id.
With these principles in mind, we review the district court’s finding that
there was good cause for the delay in service. The district court concluded that,
though untimely,2 the plaintiff’s February 2008 motion to extend time to effect
service was supported by good cause, citing the numerous instances of
attempted service. In her petition, Hoffman alleged Carlock was a resident of
Clinton County, Iowa. She attempted personal service upon Carlock in Clinton
County, Iowa. However, on a return of service filed May 31, 2007, the Clinton
County sheriff noted, “Unable to serve Todd Carlock. He is living in Minnesota.”
Plaintiff thereafter attempted personal service upon Carlock in Minnesota.
2
In Wilson, the court noted that ninety days was chosen in order that service would be
perfected prior to the issuance of scheduling orders by most courts. Wilson, 678 N.W.2d
at 423-24. Here, as was the case in Wilson, there is no evidence the district court had
filed a scheduling order. See id. at 424 (noting parties’ agreement not to effect timely
service allowed case to languish for a year because no scheduling order was filed). We
reiterate the Wilson court’s admonition that “diligent court administration should obviate
the need for courts to rule” on motions to dismiss for failure to effect timely service. Id.
6
In a February 21, 2008 affidavit of a process server, the server asserts
some thirteen attempts of service at Carlock’s employer:
While attempting at the work place, the front desk person told me
Todd drives truck in the five state area and his schedule is always
changing and would not give me any specifics as to when he would
be around.
In addition, service was attempted at two personal addresses.
None of the
attempts were successful. In the motion for service by publication, the plaintiff
asserted that Carlock was resident of Iowa “who has departed therefrom with the
intent to avoid service.” The district court granted additional time, and (as the
court later wrote) “impliedly found good cause to grant plaintiff an extension of
time to complete service by publication.”
We conclude there is substantial evidence to support the district court’s
finding that good cause existed for the delay in service.
There is sufficient
showing that “[t]he plaintiff [has] taken some affirmative action to effectuate
service of process upon the defendant or [has] been prohibited, through no fault
of [her] own, from taking such an affirmative action.” Henry, 566 N.W.2d at 19293. Carlock’s whereabouts were uncertain; perhaps purposely so. We note his
contradictory pleadings. In Carlock’s motion to quash and in his application for
interlocutory appeal, he asserted that he was a resident of Clinton County, Iowa,
at the time the petition was filed. In fact, in his motion to quash he stated he
“was a resident of Clinton County, Iowa for more than 90 days after the date of
filing of the Petition at Law.” He argues that the plaintiff should have personally
served him in Iowa.
7
Yet now, Carlock asserts in his appellate brief, “Hoffman filed her Petition
at Law on May 2, 2007. Carlock was no longer a resident of Clinton County,
Iowa.
He sold his residence in Camanche, Iowa in November of 2006 and
relocated to Minnesota where he found employment.” He argues that because
he was not a resident of Iowa, the plaintiff should have served him by publication
“in June or July 2007.”
Because there was good cause for delay in service, the motion to dismiss
was properly overruled. We therefore affirm.
AFFIRMED.
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