Katelyn Eikenberry v. Samantha Owens and American Family Mutual Insurance Co. ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1723
Filed January 21, 2021
KATELYN EIKENBERRY,
Plaintiff-Appellant,
vs.
SAMANTHA OWENS and AMERICAN FAMILY MUTUAL INSURANCE CO.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Amy
Zacharias, Judge.
Katelyn Eikenberry appeals the dismissal of her negligence petition as to
Samantha Owens. AFFIRMED.
Thomp J. Pattermann of Law Office of Gallner & Pattermann, P.C., Council
Bluffs, for appellant.
Marshall W. Tuttle of Peddicord Wharton, LLP, West Des Moines, for
appellee Samantha Owens.
Lyssa Henderson, West Des Moines, for appellee American Family Mutual
Insurance Co.
Considered by Mullins, P.J., May, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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MULLINS, Presiding Judge.
On December 5, 2018, Katelyn Eikenberry, an Iowa resident, filed suit
against Samantha Owens, a Nebraska resident, alleging negligence in relation to
a December 2016 automobile collision. In August 2019, Owens filed a motion to
dismiss pursuant to Iowa Rule of Civil Procedure 1.302(5), alleging she was never
served with the original notice and petition. Eikenberry resisted. The resistance
and its attachments disclose the original notice and petition were filed with the Iowa
Department of Transportation (DOT) on December 27, 2018; a non-resident
notification was mailed to Owens by regular and certified mail on January 12, 2019;
and the certified mailing was returned to Eikenberry’s counsel on March 4, stating,
“attempted—not known, unable to forward,” but the regular mailing was never
returned. Owens replied Eikenberry failed to cause mailing by restricted certified
mail to her within ten days of notice of filing the original notice with the DOT, as
required by Iowa Code section 321.501(2) (2018). Following an unreported
hearing, the court granted the motion to dismiss and this appeal followed.
The requirements of section 321.501 must be strictly complied with. Emery
Transp. Co. v. Baker, 119 N.W.2d 272, 274–75 (Iowa 1963). A plaintiff in actions
against nonresidents “shall cause the original notice of suit to be served” by mailing
by restricted certified mail a notification of filing notice of suit with the DOT within
ten days after filing notice with the DOT. Iowa Code § 321.501(2). “[T]here must
be a showing of actual or offered delivery.” L.F. Noll Inc. v. Eviglo, 816 N.W.2d
391, 395 (Iowa 2012). Eikenberry admittedly failed to mail the notice to Owens
within ten days. While Eikenberry argues the regular mailing was not returned as
undeliverable, hence suggesting Owens received it, “[o]ur supreme court has
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identified the restricted certified mail method of service required by section 321.501
as ‘extraordinary in character,’ and has stated that it ‘must be strictly followed.’”
Butler v. Nalvanko, No. 0-984, 2011 WL 441483, at *3 (Iowa Ct. App. Feb. 9, 2011)
(quoting Esterdahl v. Wilson, 110 N.W.2d 241, 243 (Iowa 1961)). We conclude
the deficient service was insufficient to confer jurisdiction on the district court.
Eikenberry goes on to argue good cause exists to warrant additional time
and/or an alternate manner of service. See Iowa R. Civ. P. 1.302(5). But
Eikenberry does not appear to have made this argument to the district court and,
if she did, the court did not address it in its ruling, so we agree with Owens that
Eikenberry failed to preserve error. See, e.g., 33 Carpenters Constr., Inc. v. State
Farm Life & Cas. Co., 939 N.W.2d 69, 76 (Iowa 2020) (“We are a court of review,
and we do not generally decide an issue that the district court did not decide first.”).
We affirm the dismissal of Eikenberry’s petition as to Owens.
AFFIRMED.