Leonard Jack v. P and A Farms, LTD., D/B/A Crooked Creek Shooting Preserve

IN THE SUPREME COURT OF IOWA
No. 11–0877
Filed November 2, 2012
LEONARD JACK,
Appellant,
vs.
P AND A FARMS, LTD., d/b/a
CROOKED CREEK SHOOTING
PRESERVE,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Washington County,
Joel D. Yates, Judge.
Plaintiff seeks further review of court of appeals decision affirming
district court’s entry of default judgment when he failed to personally
appear for trial but his counsel was present to proceed on his behalf.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
James K. Weston II of Tom Riley Law Firm, Iowa City, for
appellant.
Heather L. Carlson of McDonald, Woodward & Carlson, P.C.,
Davenport, for appellee.
2
ZAGER, Justice.
In this case we are called on to decide whether a trial court’s entry
of a default judgment under Iowa Rule of Civil Procedure 1.971(3) is
justified when a party fails to appear personally for trial but the party’s
attorney is present and able to proceed in the client’s absence. The court
of appeals affirmed the district court’s entry of a default judgment due to
the plaintiff’s failure to appear personally at the time of his scheduled
trial. We granted further review. We now vacate the opinion of the court
of appeals, reverse the judgment of the district court, and remand for
trial.
I. Factual and Procedural Background.
The relevant facts in this case are undisputed. In December 2005,
Leonard Jack was an employee of P and A Farms, Ltd., doing business as
Crooked Creek Shooting Preserve (Crooked Creek). Crooked Creek is a
game preserve located in Washington County, Iowa, and its business
activities include raising mallard ducks used for training hunting dogs
and for human consumption. As an employee of Crooked Creek, Jack’s
responsibilities included caring for the ducks, feeding the ducks,
maintaining the duck pens, and cleaning ducks for customers.
Crooked Creek housed approximately 3400 ducks in a 100 foot by
200 foot pen which was exposed to the elements but covered by a net.
On December 20, 2005, the pen was covered in snow and ice. Jack
slipped on the ice and fell while carrying two five-gallon buckets of grain.
As a result, he sustained a shoulder injury. Jack received extensive
treatment for the injury including surgery at the University of Iowa
Hospitals and Clinics. On May 24, 2007, Jack filed a petition at law and
jury demand in the Washington County District Court alleging medical
3
expenses of approximately $47,000. 1 He also alleged that his injury
occurred within the course and scope of his employment and that at the
time of his injury Crooked Creek did not have workers’ compensation
liability insurance as required by law. Therefore, under Iowa Code
section 87.21 (2005), it was presumed that his injuries were the direct
result of, and grew out of, the negligence of Crooked Creek and that such
negligence was the proximate cause of his injuries. Jack alleged
damages for past and future medical expenses, past and future lost
wages, past and future physical pain and suffering, and past and future
loss of full body.
Trial was originally set for April 1, 2008. On January 25, 2008,
Jack’s counsel served requests for admissions on Crooked Creek, which
did not timely respond. 2 However, on February 8, 2008, counsel for
Crooked Creek filed a motion to withdraw from representation and a
motion to continue. These resisted motions were granted by the court,
which set a new trial date for December 16, 2008. New counsel for
Crooked Creek did not file an appearance until October 24, 2008—over
seven months later. Various motions were subsequently ruled on by the
court. On November 7, 2008, the court entered an order denying
Crooked Creek’s motion to continue the trial and ordering Jack to make
himself available for deposition. The court granted Crooked Creek’s
motion to file untimely responses to the January 25 request for
admissions and ordered the responses be filed by November 18. On
1The
amount incurred for medical expenses reflected in Jack’s request for
admissions and in his appellate brief is $44,697.72. Therefore, we will assume that
$44,697.72 is the amount of medical expenses Jack seeks to recover.
2Pursuantto Iowa Rule of Civil Procedure 1.510(2), the matters upon which
Jack requested admissions were deemed admitted when Crooked Creek failed to
respond within thirty days.
4
November 20, Jack filed a motion to reconsider the district court’s order
requiring him to make himself available for deposition in Washington
County, Iowa, by December 1. Therein Jack asserted that he had
recently started a new job in Idaho and traveling to Iowa for both the
December 1 deposition and the December 16 trial would result in him
losing his job.
On November 25, 2008, Jack filed a motion to remove the case
from the operation of Iowa Rule of Civil Procedure 1.944. 3 The motion
indicated that counsel for both parties agreed a continuance would be in
the interest of justice. This motion was granted, and the trial in this
matter was continued until June 9, 2009.
On June 1, 2009, Crooked Creek filed an application to serve
responses to requests for admissions. Attached to that motion were
responses denying six of the requests in whole or in part. The court
granted Crooked Creek’s application upon finding that Jack would not be
unfairly prejudiced. Trial did not take place as scheduled on June 9,
2009, and the trial was continued and rescheduled no fewer than four
times at the request of each of the parties. By order entered June 24,
2010, jury trial was scheduled to begin on May 3, 2011.
On May 3, 2011, Jack failed to appear personally for trial. After
the jury was impaneled, a hearing was held outside the presence of the
jury. Jack’s counsel informed the court that it was his understanding
Jack, who had since moved to Idaho, was absent because he was
3Iowa Rule of Civil Procedure 1.944 governs dismissal for want of prosecution.
Subsection 2 states, in part, “All cases at law or in equity where the petition has been
filed more than one year prior to July 15 of any year shall be tried prior to January 1 of
the next succeeding year.” Iowa R. Civ. P. 1.944(2).
5
“stranded.” He also indicated he had notified Jack of the trial date by
letter on June 24, 2010, the same day the trial date was scheduled.
Jack’s counsel requested a continuance, and Crooked Creek
moved to dismiss. After the court denied the motion to continue, Jack’s
counsel resisted the dismissal and argued in the alternative that based
on the statutory presumptions contained in Iowa Code section 87.21,
and the admissions made by Crooked Creek, Jack had already made a
prima facie case of negligence. Therefore, as his attorney, he should be
allowed to proceed to trial without Jack being personally present to
testify. He also requested the opportunity to submit Jack’s deposition
testimony in lieu of his trial testimony.
The district court granted Crooked Creek’s motion to dismiss and
entered a ruling stating:
This case was scheduled for a jury trial commencing at
9:00 a.m. on May 3, 2011. Counsel for the Plaintiff and the
Defendant appeared; however, the Plaintiff failed to
personally appear. Plaintiff’s counsel made an oral motion to
continue the trial to a later date. Defendant’s counsel
resisted the motion to continue and moved that the case be
dismissed. The Court notes that this case has been on file
since 2007, that this trial date has been set for almost a
year, and that the Plaintiff received notice of the trial date.
After considering the arguments of counsel, the Court finds
that the Plaintiff’s motion to continue the trial should be and
is here by denied and that the Defendant[’]s motion for
dismissal should be and is hereby granted.
On May 12, Jack filed a resisted motion to enlarge or amend,
requesting that the district court enter a ruling addressing his counsel’s
proposition to proceed to trial in Jack’s absence. He also requested that
the district court reconsider its denial of his motion for continuance. The
court granted the motion to enlarge or amend and added the following
language to its previous ruling:
6
This lawsuit was commenced May 24th, 2007. Both
parties were notified on June 24th, 2010 that the jury trial
was scheduled to start at 9:30 a.m. on May 3rd, 2011.
Plaintiff Leonard Jack failed to appear for his jury trial
on May 3rd. Attorney for Jack orally asked the Court to
continue the trial minutes before it was to start. Defendants
resisted any continuance and were ready to proceed. The
court finds that the attorney for Plaintiff failed to state any
good cause for continuing the trial.
Additionally, acting pursuant to Iowa Rule of Civil
Pro[cedure] 1.971(3), the Court finds Leonard Jack to be in
default when he failed to be present for trial.
On June 3, 2011, Jack filed a notice of appeal, and we transferred
the case to the court of appeals. A majority of the three-judge panel of
the court of appeals affirmed the holding that dismissal was appropriate
under rule 1.971(3) and that Jack’s absence prevented Crooked Creek
from cross-examining him, which is essential to a fair trial. The majority
also found that it was within the district court’s discretion to decline to
order a less drastic remedy. The dissenting judge wrote separately,
concurring in part and dissenting in part. In her view, rule 1.971(3) did
not require dismissal in a case such as this where a party was not
personally present for trial, but his counsel appeared on his behalf and
requested to proceed to trial.
II. Standard of Review.
“A decision to grant or deny a motion for default judgment rests in
the sound discretion of the trial court.” See Wilson v. Liberty Mut.
Grp., 666 N.W.2d 163, 165 (Iowa 2003). Reversal is only warranted upon
a finding that the court’s discretion has been abused. Id. Similarly, we
review a district court’s decision to grant or deny a motion for
continuance for abuse of discretion. Hawkeye Bank & Trust, Nat’l Ass’n
v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). However, this case turns on
the interpretation of Iowa Rule of Civil Procedure 1.971(3), and we review
7
the interpretation of our rules of civil procedure for correction of errors at
law. Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010); see also
Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 n.6 (Iowa
2012) (“When a discretionary decision by a trial court involves an
erroneous interpretation of law, our review is for legal error.”).
III. Discussion.
A. Default Judgment Under Rule 1.971(3). A default judgment
is a judgment against the party who has failed to take the next step
required in the progress of a lawsuit. Kirby v. Holman, 238 Iowa 355,
374, 25 N.W.2d 664, 674 (1947). Iowa Rule of Civil Procedure 1.971
governs default judgments and subsection 3 states, “A party shall be in
default whenever that party . . . [f]ails to be present for trial.” We do not
have any cases interpreting the word “party” as it appears in rule
1.971(3) or indicating whether the rule permits a party’s counsel to
appear on behalf of a party who is not personally present. 4 Nor do we
have any recent cases discussing the entry of default judgment against a
party for failure to be present at trial.
“Our ultimate goal in construing statutes is to find the true
intention of the legislature.” 5 Iowa Dep’t of Transp. v. Soward, 650
N.W.2d 569, 571 (Iowa 2002). “We look to both the language and the
4An interpretation of Federal Rule of Civil Procedure 55 governing default
judgments in federal court is not instructive in the case at bar. 28 U.S.C. § 1654 (2006)
definitively provides that “[i]n all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.” Thus, § 1654
affirmatively resolves the issue of whether a party who does not personally appear for
trial may proceed through counsel.
5We acknowledge that the Iowa Rules of Civil Procedure are promulgated by this
court in consultation with the Iowa Supreme Court Advisory Committee on Rules of
Civil Procedure. Nonetheless, we apply ordinary canons of statutory construction in
interpreting these rules. See City of Sioux City v. Freese, 611 N.W.2d 777, 779 (Iowa
2000) (“[W]e interpret rules in the same manner we interpret statutes.”).
8
purpose behind the statute.” Iowa Comprehensive Petroleum
Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359,
363 (Iowa 2000). We also consider relevant statutes together and try to
harmonize them. 6 Soward, 650 N.W.2d at 571. “If the legislature has
not defined words of a statute, we may refer to prior decisions of this
court and others, similar statutes, dictionary definitions, and common
usage.” Id.
Crooked Creek relies on an unreported court of appeals decision in
which that court affirmed a default judgment against a plaintiff who was
absent at the time designated for trial and after the jury had been
impaneled. Manguno v. Bowden, No. 00–1646, 2002 WL 1840867, *1
(Iowa Ct. App. August 14, 2002). Manguno is distinguishable because
the plaintiff was pro se, and accordingly, nobody was present to proceed
in the plaintiff’s absence. Id.; see also Krugman v. Palmer Coll. of
Chiropractic, 422 N.W.2d 470, 473, 475 (Iowa 1988) (affirming entry of
default judgment when the party, her experts, and her attorney failed to
6We note at the outset of our analysis that rule 1.404 governing appearances is
inapplicable to the case at bar. Rule 1.404(2) states:
The court shall have no power to treat an appearance as
sufficient to delay or prevent a default or any other order which would be
made in absence thereof, or of timely pleading. Notice and opportunity to
respond to any motion for judgment under rule 1.973(2) shall be given to
any party who has appeared.
Thus, at first blush, rule 1.404(2) seems to suggest that the appearance of an
attorney on behalf of a party is insufficient to prevent an entry of default judgment
justified under rule 1.971. However, the term “appearance” as it is used in rule
1.404(2) does not address the concept of an attorney showing up for trial on behalf of a
party who is not physically present. Rather, rule 1.404(2) refers to the more legalistic
definition of appearance in which an attorney clearly indicates to the court that he or
she is the attorney “in charge of the case.” See Iowa R. Civ. P. 1.404(1). Jack is not
arguing that his attorney’s formal “appearance” in this case by signing the petition
prevented the court from entering a default judgment under rule 1.971(3). Rather, Jack
is arguing that the district court erred in entering a default judgment under rule
1.971(3) because his attorney was “present for trial” on his behalf.
9
appear for depositions and trial); Langner v. Mull, 453 N.W.2d 644, 647–
49 (Iowa Ct. App. 1990) (affirming entry of default judgment against pro
se party who failed to appear for trial).
In its brief, Crooked Creek also cites Hebert v. C.F. Bean Corp., a
Louisiana court of appeals decision upholding the trial court’s dismissal
of the plaintiff’s action where, as here, the plaintiff’s counsel, but not the
plaintiff, appeared for trial. 785 So. 2d 1029, 1031 (La. Ct. App. 2001).
We are not persuaded that Hebert supports Crooked Creek’s
interpretation of rule 1.971(3). In that case, the court expressly rested
its holding on the fact that “there [wa]s no evidence that Plaintiff’s
counsel was ready to proceed without his client. Therefore, the mere
appearance of Plaintiff’s counsel [wa]s not enough to defeat the dismissal
. . . .” Id. Thus, the Louisiana court provided that dismissal of a
plaintiff’s action for failure to appear personally may be improper where,
as here, the plaintiff’s counsel appears and is ready to proceed on the
client’s behalf. Id.
Crooked Creek contends, essentially, that our rules of civil
procedure always require a party to be personally present for trial and do
not permit a party to proceed to trial through counsel. However,
numerous cases demonstrate that the rules were intended to
contemplate a variety of situations in which a party who is not personally
present may, through counsel, proceed to a trial where substantial rights
are adjudicated.
In Vaux v. Hensal, we held that the trial court properly entered a
default judgment against a defendant who timely filed an answer but
failed to appear for trial. 224 Iowa 1055, 1059, 277 N.W. 718, 720–21
(Iowa 1938). However, in that case “neither the defendant . . . nor his
attorney appeared in court” on the day the case was assigned for trial.
10
Id. at 1056, 277 N.W. at 719. Under instruction of the court, the clerk of
court telephoned the defendant’s attorney and advised him that the case
had been rescheduled for the following day. Id. Despite receipt of this
message, the next day when trial was scheduled to begin, and after the
jury had been impaneled, both the defendant and his attorney again
failed to show up. Id. The plaintiff waived the jury, and the court
“entered an order finding the defendant in default for want of appearance
and proceeded to hear plaintiff’s evidence.” Id.
After the introduction of a portion of the plaintiff’s evidence, the
defendant’s counsel appeared and requested “the default be set aside
and that he be permitted to make his defense to the plaintiff’s claim.” Id.
The court agreed, but the defendant’s attorney declined to proceed when
the court refused to acquiesce in his insistence upon a jury trial. Id. at
1056–57, 277 N.W. at 719. Thereafter, the plaintiff proceeded to
introduce its evidence to the court, and the court entered a judgment
against the defendant. Id. at 1057, 277 N.W. at 719. The defendant
appealed alleging the court erred in entering the default for
nonappearance. Id. at 1057, 277 N.W. at 719–20. On appeal we
affirmed. Id. at 1059, 277 N.W. at 721. Vaux is instructive in that it
demonstrates a district court’s authority to sanction a party for failure to
appear for trial. Id. at 1057, 277 N.W. at 720. Notably, however, even
though the defendant was not personally present, the court gave the
defendant’s counsel the option to defend the case in the defendant’s
absence. Id. at 1056–57, 277 N.W. at 719.
In Myers v. Emke, an inmate filed a civil rights action against the
state. 476 N.W.2d 84, 84 (Iowa 1991). Through counsel, the inmate filed
a motion requesting the court enter an order allowing the plaintiff to be
transported from prison for the trial. Id. The district court denied the
11
plaintiff’s motion. Id. On appeal, we affirmed the holding that “[a]n
inmate has no constitutional right to be produced as a witness in his
own civil rights action.” Id. at 85. We noted that the “plaintiff’s civil
action d[id] not present any problems that would prevent the trial court
from adequately functioning and dispensing justice in plaintiff’s
absence.” Id. Because the plaintiff’s presence was not “reasonably
necessary” the court “lack[ed] inherent power to order his presence.” Id.
The holding in Myers rests largely upon the doctrine of separation
of powers, and we discussed our reluctance to invade the province of the
executive branch. Id. at 86. Nonetheless, the Myers case provides a
discrete example of a situation in which a party has been not only
permitted, but required, to advance his claim through counsel. Id.
In Heck v. Anderson, we said “[t]he necessity of the presence of a
party at the trial of a civil action for damages against him is admittedly
not absolute.” 234 Iowa 379, 384, 12 N.W.2d 849, 851 (1944) (quoting
Hellberg v. Warner, 48 N.E.2d 972, 975 (Ill. Ct. App. 1943) (applying
Soldiers’ and Sailors’ Civil Relief Act of October of 1940)); see also
Jamison v. Knosby, 423 N.W.2d 2, 4 (1988) (noting defendant did not
appear personally at trial but his counsel appeared on his behalf); Semler
v. Oertwig, 234 Iowa 233, 242, 12 N.W.2d 265, 270 (Iowa 1943) (noting
that in some circumstances presence of a military serviceman at trial
may be “unnecessary to an adequate protection of his rights”). This
statement would be at odds with a default judgment rule that always
required a party to appear personally at trial. Crooked Creek’s
interpretation of rule 1.971(3) is also at odds with numerous trial
scenarios in which it is commonly understood that a party may advance
claims through counsel without being personally present.
12
For instance, both postconviction relief proceedings and
termination of parental rights proceedings are generally governed by the
rules of civil procedure. See Iowa Code § 822.7 (stating the rules of civil
procedure are applicable to postconviction relief proceedings); In re
Interest of B.G.C., 496 N.W.2d 239, 242 (Iowa 1992) (“Section 600A.7(1)
provides that termination hearings shall be conducted in accordance
with our rules of civil procedure.”). Nonetheless, we have held that a
postconviction relief applicant has no due process or statutory right to
personally attend the postconviction relief trial. See Webb v. State, 555
N.W.2d 824, 827 (Iowa 1996).
Similarly, in In re Interest of J.S., our court of appeals held that a
parent’s physical presence is not required at a termination of parental
rights hearing when counsel is present on the parent’s behalf. 470
N.W.2d 48, 52 (Iowa Ct. App. 1991); cf. In re Interest of T.C., 492 N.W.2d
425, 428–29 (Iowa 1992) (finding father was not denied his due process
rights at child-in-need-of-assistance (CINA) adjudicatory hearing due to
fact that father was in county jail at time of service of notice and CINA
proceedings and that it was unlikely that court would have entered order
different from what it did had the father been present). In both of these
situations, one of the parties is often incarcerated, and it is commonly
understood that a party who appears through counsel will not be held to
be in default.
Also, a rule that required a party to appear personally for trial
would be inscrutable in its application to a party who is not a person but
rather an entity. In Hawkeye Bank & Trust, we held that corporations in
this state are generally required to appear only by lawyer. 463 N.W.2d at
25. If the corporation itself is required to be present for trial, it is wholly
unclear which person or persons would be required to appear on the
13
corporation’s behalf. Clearly, a corporation represented by counsel
would not be considered to be in default where no employees, officers, or
shareholders showed up for trial. Cf. Kirk v. Madsen, 240 Iowa 532, 534,
36 N.W.2d 757, 758 (Iowa 1949) (“All testimony is undisputed as [the
defendant who owned the company . . .] was represented by counsel at
the trial, failed to appear in person[,] and could not be found to be served
with subpoena.”).
Numerous state appellate courts that have considered the issue
now before us have interpreted their respective rules of civil procedure to
allow a party to proceed to trial through counsel without actually being
personally present. See, e.g., In re Interest of M.M., 708 So. 2d 990, 992
(Fla. Dist. Ct. App. 1998) (holding the entry of default judgment against
parents in termination proceeding for failing to appear was improper
because the parents appeared through their counsel); Owen v. Healy,
896 A.2d 965, 967–68 (Me. 2006) (“Evidence of a party’s unexplained
failure to appear in person . . . does not justify a default that avoids trial
where, as here, the missing party is represented by counsel at the trial.”);
Rocky Produce, Inc. v. Frontera, 449 N.W.2d 916, 917 (Mich. Ct. App.
1989) (reversing default judgment based on civil defendant’s failure to
appear personally at trial because, “absent a subpoena or order from the
court to appear, a defendant in a civil case is not required to appear in
person for a scheduled trial”); Croes v. Handlos, 30 N.W.2d 471, 472
(Minn. 1948) (“Of course, a defendant may appear and answer
personally, but he must do so either personally or by counsel.”); Ogawa
v. Ogawa, 221 P.3d 699, 707 (Nev. 2009) (where a party “appeared at the
divorce hearing through counsel . . . the district court erred in entering
the default against him”); N.J. Div. of Youth & Family Servs. v. P.W.R.,
983 A.2d 598, 600 (N.J. Super. Ct. App. Div. 2009) (holding that it was
14
improper for trial court to enter default against stepmother based on
failure to appear personally at child abuse fact-finding hearing where her
attorney appeared to represent her interests), rev’d on other grounds, 11
A.3d 844, 847 (N.J. 2011) (noting that lower appellate court “panel
concluded, rightfully, that the default was improper”); In re Brandon A.,
769 A.2d 586, 589 (R.I. 2001) (“defin[ing] an appearance as [a] coming
into court as party to a suit, either in person or by attorney” and holding
that the “Family Court justice’s entry of default against respondent who
was represented by counsel was clearly erroneous” (citation and internal
quotation marks omitted)); LeBlanc v. LeBlanc, 778 S.W.2d 865, 865
(Tex. 1989) (holding there was no default in divorce action because party
who did not appear personally was represented by counsel at trial).
While none of these jurisdictions have a default judgment provision
identical to rule 1.971(3), we find this body of persuasive authority
instructive.
The preceding precedents demonstrate that when a party and the
party’s representative fail to appear for trial, the decision to grant or deny
a motion for default judgment under rule 1.971(3) rests within the sound
discretion of the trial court. See Wilson, 666 N.W.2d at 165; Krugman,
422 N.W.2d at 473–74. However, we do not interpret rule 1.971(3) to
permit the entry of a default judgment against a party who fails to appear
personally for trial when the party’s attorney is present and able to
proceed in the party’s absence. Unless subject to a subpoena or court
order, a plaintiff in a civil trial is not obligated to take the stand. Thus,
there is no reason why a plaintiff in a civil trial should be required to
appear personally when his or her presence is not “reasonably
necessary.” See Myers, 476 N.W.2d at 85 (allowing civil trial to proceed
through counsel where presence of incarcerated plaintiff was not
15
“reasonably necessary”); see also Rollins v. Coggshall, 29 Iowa 510, 511
(1870) (“A default can only be taken against one who has failed to comply
with some rule or order of the court.”).
Through counsel, Jack could have advanced his claim based
entirely on admissions by Crooked Creek which were already in the
record. See White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, 581
(1962) (“[P]laintiff can make his whole case on defendant’s deposition if
he so desires. He could always prove his case by statements of
defendant made out of court . . . .”). In this case, Jack would also have
been entitled to rely on the presumptions contained in Iowa Code section
87.21 in the prosecution of his claim. Under these circumstances, Jack
was able to take the next step required in the progress of the lawsuit,
and thus, was not in default. Kirby, 238 Iowa at 374, 25 N.W.2d at 674.
It was well within the discretion of the district court to decline to
grant a seventh continuance in a case that had been on file for over four
years. Hawkeye Bank & Trust, 463 N.W.2d at 26 (“Given the broad
discretion vested in district courts to grant or deny continuances, we will
reverse only when that discretion is abused.”). However, we find that the
court’s entry of a default judgment dismissing Jack’s case was based on
an erroneous interpretation of rule 1.971(3). We believe our
interpretation of rule 1.971(3) is consistent with our general policy in this
jurisdiction “ ‘to allow a determination of controversies on their merits
rather than on the basis of nonprejudicial inadvertence or mistake.’ ”
Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999)
(quoting Whitehorn v. Lovik, 398 N.W.2d 851, 853 (Iowa 1987)); Paige v.
City of Chariton, 252 N.W.2d 433, 437 (Iowa 1977); Wharff v. Iowa
Methodist Hosp., 219 N.W.2d 18, 21 (Iowa 1974) (“The general policy in
this jurisdiction has been to allow trial on the merits.”); Sawyer v.
16
Sawyer, 261 Iowa 112, 117, 152 N.W.2d 605, 608 (1967) (“[T]rials upon
the merits are favored and defaults avoided if fairly possible.”); see also
McQuillen v. City of Sioux City, 306 N.W.2d 789, 791 (Iowa 1981) (“[T]he
drastic action of dismissal should not be ordered in the absence of
willfulness, bad faith or fault.”).
B. Crooked Creek’s Right to Cross-Examine Jack. Crooked
Creek concedes that Jack had made a prima facie case on his negligence
claim but contends that it was entitled to rebut the presumption of
negligence established under section 87.21 by cross-examining Jack at
trial. The court of appeals “agree[d] with Crooked Creek that despite
Jack’s ability to establish a prima facie case under section 87.21, his
absence precluded [Crooked Creek] from cross-examining him, which is
essential to a fair trial.” For this proposition, the court cited our decision
in Avery v. Harms Implement Co., which states, “While the scope of cross-
examination is discretionary, the right to do so is absolute. It is a right
essential to a fair trial.” 270 N.W.2d 646, 650 (Iowa 1978).
However, in the second subsequent sentence in the Avery decision,
we also stated, “Under our rules, cross-examination is limited to matters
testified to in chief.” Id. Because the proposition below was to proceed
in Jack’s absence, Jack would not have testified in his case-in-chief and
would not have been subject to cross-examination. See Heinz v.
Heinz, 653 N.W.2d 334, 342 (Iowa 2002) (“The purpose of cross-
examination is to test the veracity of statements a witness made . . . .”).
A party is not denied a fair trial by the denial of the opportunity to cross-
examine a witness who does not give any testimony. The very definition
of cross-examination requires that the witness first be examined on
direct.
17
Crooked Creek cannot complain that it would have been deprived a
fair trial because of the failure of one of the opposing parties’ designated
witnesses to appear for trial. Crooked Creek may have been entitled to
examine Jack had they subpoenaed him in accordance with Iowa Rule of
Civil Procedure 1.1701(1)(a)(3). 7 However, Crooked Creek did not
subpoena Jack and was required to resort to other evidence to rebut the
presumption of negligence arising under section 87.21. 8 If a party
wishes to assure the availability of an opposing party to be called as a
7Because Jack is a party, rule 1.1701(4)(d)(1)(2), which permits the quashing or
modification of a subpoena requiring a nonparty “to travel more than 50 miles from
where that person resides,” would have been inapplicable.
8Rule 1.707 governing notice for oral depositions demonstrates that if the
drafters of rule 1.971(3) intended to allow a party to compel an opposing party to testify
at trial without obtaining a subpoena, they certainly knew how to do so. Rule 1.707(4)
provides:
No subpoena is necessary to require the appearance of a party for
a deposition. Service on the party or the party’s attorney of record of
notice of the taking of the deposition of the party or of an officer, partner
or managing agent of any party who is not a natural person, as provided
in rule 1.707(1), is sufficient to require the appearance of a deponent for
the deposition.
The first sentence of rule 1.707(4) is similar to rule 1.971(3) in that the term
“party” is undefined. However, unlike 1.971(3), it is clear from this rule that the party
himself must personally appear, and the party’s attorney cannot appear at depositions
on his behalf.
Firstly, the rule implicitly distinguishes between the party and the party’s
attorney by stating service of notice “on the party or the party’s attorney” of the “taking
of the deposition of the party . . . is sufficient to require appearance.” Iowa R. Civ. P.
1.707(4). By juxtaposing the phrase “[s]ervice on the party or the party’s attorney” with
the phrase “taking of the deposition of the party,” the rule forecloses an interpretation
that would permit a party’s attorney to appear on his behalf for depositions. Instead, it
is clear that the deposition of an opposing party himself may occur after he or his
attorney is served with notice.
Secondly, common sense dictates that a party’s attorney cannot appear on his
or her behalf for a deposition and the party being deposed must personally appear.
Unlike trial, the only thing that occurs at the deposition of a party is the giving of that
party’s testimony. Clearly, an attorney cannot testify on behalf of his or her client.
However, as discussed above, there are numerous instances where it is understood that
an attorney may advance a client’s claims at trial notwithstanding the party’s physical
absence.
18
witness, or the availability of any witness for that matter, the appropriate
procedure to compel the attendance of a witness must be employed.
IV. Conclusion.
The district court did not abuse its discretion when it denied
Jack’s motion to continue the trial. However, the district court’s decision
to enter a default judgment against Jack rested on an erroneous
interpretation of rule 1.971(3). Because rule 1.971(3) does not require a
party to appear personally for trial, it was an abuse of discretion to enter
a default judgment against Jack when his counsel was present and able
to proceed to trial on his behalf.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.