No. 5-313 / 04-0387Court of Appeals of Iowa.
Filed May 25, 2005
Appeal from the Iowa District Court for Dickinson County, David A. Lester, Judge.
Plaintiffs appeal the dismissal of their personal injury action. AFFIRMED.
James L. Benz of Benz Law Office, Spirit Lake, and Michael R. Bovee of Montgomery, Barry Bovee, Spencer, for appellant.
James W. Redmond and Joel D. Vos of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra Prahl, L.L.P., Sioux City, for appellee.
Heard by Mahan, P.J., Zimmer, J., and Hendrickson, S.J.[*]
HENDRICKSON, S.J.
After their first personal injury lawsuit against Elaine Hurst was dismissed because of a failure to serve the original notice, Steven Davidson and Linda Davidson filed this present action, which the trial court dismissed as barred by the applicable statute of limitations. After reviewing for the correction of errors at law, see Albrecht v. General Motors Corp., 648 N.W.2d 87, 89 (Iowa 2002) (scope of review of trial court dispositions of motions to dismiss), we affirm the judgment of the district court.
I. Background.
We assume the following facts to be true. See id. On the evening of April 29, 2000, the Davidsons were dining at a restaurant in Arnolds Park when a car driven by Ms. Hurst struck the restaurant. Ms. Hurst was a resident of Kalamazoo, Michigan. The Davidsons were injured by Ms. Hurst’s allegedly negligent acts.
On April 26, 2002 and shortly before the expiration of the limitations period, the Davidsons filed suit in Dickinson County, naming Ms. Hurst as a defendant, along with the owner of the restaurant business and the owners of the land upon which the restaurant sat. That day, Dale S. Honken, the attorney for the Davidsons, sent a petition and an original notice to the sheriff of Kalamazoo County, Michigan. The sheriff was unable to serve Ms. Hurst with the original notice, and recommended that Honken use a private process server. On April 30, Honken retained a private process server. The process server was unable to serve Ms. Hurst. On May 8, Honken double-checked Ms. Hurst’s address with the office of the Michigan Secretary of State, which indicated he had provided Ms. Hurst’s proper address to the process server. On May 15, the process server sent a fax to Honken, advising him that nobody was coming or going from Ms. Hurst’s address and inquiring whether he wanted an alternate method of service. Honken advised the process server to continue to attempt service. From May to August, Honken and the process server continued to discuss service. On August 20, the process server ceased all efforts to serve Ms. Hurst and returned all papers to the Honken. Honken did not seek a court order allowing him additional time to serve Ms. Hurst.
Honken participated in an August 29, 2002 trial setting conference. The record contains some indication that Honken designated his expert witnesses in December 2002 and provided some of his clients’ medical records to Ms. Hurst’s insurance agent.
On February 12, 2003, Ms. Hurst filed a motion to dismiss based on Iowa Rule of Civil Procedure 1.302(5), which requires service of an original notice within ninety days of the filing of the action. Honken did not reply to the motion or attend the hearing on the motion, which occurred on March 17. On that date, the motion was granted, and counsel was directed to prepare an appropriate order. On May 27, the Davidsons, through new counsel, filed a motion to enlarge time to serve Ms. Hurst. The Davidsons alleged they had good cause for failing to timely serve Ms. Hurst. The district court denied the motion, and this court affirmed and remanded for an order nunc pro tunc dismissing the Davidsons’ case. Davidson v. Hurst, No. 03-1563 (Iowa Ct.App. June 9, 2004). The Davidsons filed an application for further review, which the supreme court denied.
Meanwhile, Honken’s handling of this litigation came to the attention of the board of professional ethics and conduct, which instituted disciplinary proceedings against him. Based on his handling of their case and five other matters, the supreme court suspended Honken’s license to practice law for a minimum of two years. Iowa Supreme Ct. Board of Prof’l Ethics Conduct v. Honken, 688 N.W.2d 812 (Iowa 2004).
On August 26, 2003 and while the first appeal was pending, the Davidsons filed this present action. They argue their present action was a continuation of their first action and was “saved” by Iowa Code section 614.10 (2003), which allows a party whose “action” has failed “for any cause except negligence in its prosecution” to file a new action within six months of the prior action’s failure. The second action, for purposes of the statutes of limitations, shall “be held a continuation of the first.” Iowa Code § 614.10. Ms. Hurst successfully moved to dismiss this second case as time-barred. The Davidsons appeal, arguing they should not be bound by Honken’s “negligence” in the “prosecution” of their first action.
II. Are the Plaintiffs Bound By Their Attorney’s Inaction?
As set forth above, Iowa Code section 614.10 provides a second action, if filed within six months of the failure of the first action, is “a continuation of the first” action if the first action failed for reasons other than “negligence in its prosecution.” The Davidsons have the burden of proving their entitlement to relief under this Code section. See, e.g., Sautter v. Interstate Power Co., 563 N.W.2d 609, 610 (Iowa 1997). The Davidsons, while conceding the first action was dismissed because of “negligence in its prosecution,” argue they should not be bound by the conduct of Honken’s negligence. We reject this contention.
In their argument, the Davidsons acknowledge, as a general rule, the actions of an attorney are binding on the attorney’s client. They argue Honken abandoned their case and, as a consequence, any negligence on his part should not be imputed to them. Cf. Farnsworth v. Haslett, 197 Iowa 1367, 199 N.W. 410
(1924). As the record provides no reason to depart from the general rule, we are not persuaded by this argument. For purposes of this discussion, we take it as a given that Honken abandoned the Davidsons at some point. See Honken, 688 N.W.2d at 819-20. We think, however, the Davidsons must still be charged with responsibility for Honken’s action or inaction prior to his abandonment of their case. The record before us compels us to conclude that Honken had not yet abandoned the Davidsons until after rule 1.302(5)’s deadline passed. He continued to discuss the matter with a private process server and participated in the August 2002 trial setting conference. During all material times, Honken was still acting as attorney for the Davidsons. While the quality of his representation was certainly worthy of the discipline he received, see Honken, 688 N.W.2d at 819-20, it was nonetheless still representation. No abandonment of his clients had yet occurred at any relevant time.
The Davidsons further argue that Honken ceased being their agent when he acted “fraudulently.” Farnsworth, 197 Iowa at 1373, 199 N.W. at 412. They note the supreme court concluded Honken violated DR 1-102(A)(4), which provides that an attorney must not engage “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Honken, 688 N.W.2d at 819. We have reviewed the decision in Honken. For purposes of discussion, we assume that “fraudulently,” as it is used in Farnsworth, is interchangeable with “conduct involving dishonesty, fraud, deceit, or misrepresentation,” as the phrase is used in the disciplinary rules. The only conduct explicitly mentioned by the court that could be characterized as “dishonesty, fraud, deceit, or misrepresentation” is Honken’s failure to notify the Davidsons of the dismissal of their case. Id. We cannot see, from th Honken decision or the present record, how the Davidsons have demonstrated Honken’s conduct resulting in the dismissal, as opposed to his conduct following the dismissal, was tainted by fraud.
In any event, we fail to see how concluding Honken had abandoned the Davidsons would help them in the present appeal. Our supreme court has indicated counsel’s negligence in prosecuting an action is, for purposes of section 614.10, charged to the client. See e.g., Central Constr. Co. v. Klingensmith, 256 Iowa 364, 370, 127 N.W.2d 654, 657 (1964). Furthermore, I Clark v. Stevens, 55 Iowa 361, 7 N.W. 591 (1880), our supreme court made it clear that any negligence in prosecution, regardless of the source, removes the case from section 614.10‘s coverage. In Clark, the plaintiffs’ attorney failed to mail a petition in time. Clark, 55 Iowa at 363, 7 N.W. at 592. The plaintiffs sought to shift blame to the sheriff, contending the sheriff was to remind the attorney to mail the petition to the clerk. In rejecting this excuse and while noting the sheriff was the agent of the attorney, the court stated: “It is very plain that, whoever is in fault, the action was discontinued through negligence.” Id. at 364, 7 N.W. at 592 (emphasis added). The emphasized language is a powerful indication that we may not permit the Davidsons to avoid the consequences of Honken’s negligent conduct.
III. Conclusion.
The result herein is harsh, but required. We have considered the arguments presented and affirm the judgment of the district court.
AFFIRMED.