Elizabeth Simon N/K/A Elizabeth Hartson v. Estate of Lyle Iverson ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0475
Filed March 22, 2017
ELIZABETH SIMON n/k/a ELIZABETH HARTSON,
Plaintiff-Appellant,
vs.
ESTATE OF LYLE IVERSON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, John J.
Bauercamper, Judge.
Elizabeth Hartson appeals the district court’s dismissal order.
AFFIRMED.
Rod H. Powell of Powell Law Firm, P.C., Clive, for appellant.
Jon A. Vasey of Elverson, Vasey & Abbott, LLP, Des Moines, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
VAITHESWARAN, Judge.
Elizabeth Hartson sued the estate of an Illinois resident, Lyle Iverson, for
injuries she sustained in an automobile accident that resulted in the death of
Iverson. She failed to serve the estate within ninety days of filing the petition, as
required by Iowa Rule of Civil Procedure 1.302(5), but obtained an extension of
time to complete service.
Hartson filed a proof of service within the extension period, attesting the
original notice and petition were served upon “Terry T. Stratton, attorney for the
Executor of the Estate of Lyle Iverson” and upon the Iowa Department of
Transportation pursuant to our long-arm statute. See Iowa Code § 321.500(2015). Although Hartson’s petition was filed in the Iowa District Court for
Clayton County, the original notices served on the executor’s attorney and the
IDOT stated the defendant would have to serve a motion or answer “in the Iowa
District Court for Polk County, Iowa, at the Courthouse in Des Moines, Iowa.”
The estate filed a motion to dismiss, asserting Hartson “failed to effectuate
timely and proper service on Defendant.” Following a hearing, the district court
granted the motion, finding several problems with service. Hartson appealed.
Hartson challenges the dismissal order on a number of fronts. We find it
necessary to address only one of them: the error in the original notice.
The district court concluded,
[A]n original notice which directs appearance/filing of an answer in
the wrong county or city is defective. See Summerlott v. Goodyear
Tire & Rubber Co., 111 N.W.2d 251 (Iowa 1962). Clearly the
original notice used here incorrectly directs an answer to be made
in Polk County rather than Clayton County.
We discern no error in this ruling.
3
Iowa Rule of Civil Procedure 1.302(3) requires the service of an original
notice with a copy of the petition. See also Iowa Code § 321.501 (requiring
service of original notice). Hartson served original notices that instructed the
defendant to file a motion or answer in the wrong county. This defect was fatal.
See Summerlott, 111 N.W.2d at 253 (concluding original notice informing
defendant to file appearance in Polk County rather than Jasper County where
petition was filed was “fatally defective”).
We recognize the language of the civil procedure rule in effect at the time
of Summerlott differed from our present rule. Compare Iowa R. Civ. P. 50, with
Iowa R. Civ. P. 1.302(1). The old rule required naming of the “county where the
court convenes” and required notification that the defendant “appear before said
court.”1 Our current rule requires the original notice to contain “[t]he name of the
court” but does not refer to that court in specifying the defendant’s obligation to
move or plead.2 This distinction does not alter our conclusion. The purpose of
1
The Summerlott court quoted Rule 50 as follows:
Contents Of Original Notice. The original notice shall be directed to the
defendant, and signed by plaintiff or his attorney with the signer’s
address. It shall name the plaintiff, the court, and the city or town, and
county where the court convenes. It shall state either that the petition is
on file in the office of the clerk of the court where the action is brought, or
that it will be so filed by a stated date, which must not be more than ten
days after service. It shall notify defendant to appear before said court
within the specified number of days after service required by rule 53 or
rule 54, and that unless he so appears, his default will be entered and
judgment or decree rendered against him for the relief damanded [sic] in
the petition.
Summerlott, 111 N.W.2d at 253.
2
Our current rule states:
The original notice shall contain the following information:
a. The name of the court and the names of the parties.
....
4
identifying the court is to inform the defendant of where to mount a defense. As
the court stated in Summerlott:
It seems appearent [sic] that the purpose of requiring the notice to
state the city and county where the court convenes is to inform the
defendant where he must appear in response to notice ‘to appear
before said court.’ These defendants were notified to appear in the
wrong courthouse, in the wrong city and county.
....
It is as important for a defendant to be correctly notified
where he is to appear as to be notified when his appearance is
required. There is no room for a holding that one of these two
requirements of rule 50 is jurisdictional and the other is not.
Summerlott, 111 N.W.2d at 253. See also Gordon v. Doden, 154 N.W.2d 146,
148 (Iowa 1967) (holding “the failure to designate in the original notice the city or
town in which the court convenes is a substantial defect which renders the
original notice void,” notwithstanding the fact that the defendant “was not misled
nor deceived in any way” and the name of the city appeared “several times in the
original notice”). In light of the defect in the original notice, the district court did
not err in dismissing Hartson’s petition.
AFFIRMED.
d. The time within which these rules or statutes require the
defendant, respondent, or other party to serve, and within a reasonable
time thereafter file, a motion or answer.
The original notice shall also state that if the defendant,
respondent or other party fails to move or answer, judgment by default
may be rendered for the relief demanded in the petition.
Iowa R. Civ. P. 1.302(1).