NEIMAN, STONE McCORMICK v. PACESETTER, 705 N.W.2d 340 (Iowa App. 2005)

No. 5-433 / 04-0625Court of Appeals of Iowa.
Filed August 17, 2005

Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.

A defendant appeals from a district court summary judgment ruling entered in favor of the plaintiff. AFFIRMED.

Scott Lautenbaugh and Julie Martin of Nolan, Olson, Hansen
Lautenbaugh, L.L.P., Omaha, Nebraska, for appellant.

Curtis McCormick of Neiman, Stone McCormick, P.C., Des Moines, for appellee.

Considered by Vogel, P.J., and Miller and Hecht, JJ.

PER CURIAM

Defendant Pacesetter Corp. (Pacesetter) appeals from a district court summary judgment ruling entered in favor of plaintiff Neiman, Stone McCormick, P.C. (Neiman). We review the court’s summary judgment ruling for the correction of errors at law. Iowa R. App. P. 6.4; Grinnell Mut. Reins. Co. v. Jungling, 654 N.W.2d 530, 535 (Iowa 2002). Summary judgment was appropriately granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); Grinnell Mut. Reins. Co., 654 N.W.2d at 535. Upon review, we conclude summary judgment was properly granted.

In August 2003 Neiman filed suit against Pacesetter, asserting it had agreed to represent Pacesetter in two collection actions in exchange for a one-third contingency fee in each case, that Neiman had obtained judgments against Pacesetter’s debtors in each case, that Pacesetter had directed Neiman to file satisfactions of judgment in each case, and accordingly Neiman was entitled to receive its one-third contingency fees. Pacesetter filed a timely answer denying all allegations in the petition.

On February 10, 2004, Neiman filed and served a motion for summary judgment, asserting it was entitled to judgment on the claims in its petition as a matter of law. Neiman attached copies of the fee agreements and judgments, as well as two sets of requests for admissions that Neiman had served upon Pacesetter. Neither the first set of requests, served in September 2003, nor the second set of requests, served in December 2003, was answered or objected to by Pacesetter.

On March 10, 2004, well beyond the fifteen-day deadline for resistance set by Iowa Rule of Civil Procedure 1.981(3), Pacesetter filed an unsupported resistance to the summary judgment motion. Pacesetter asserted it had not received the second set of requests for admissions, and requested additional time to respond to both the summary judgment motion and the second set of requests. On March 15, the day before the summary judgment hearing, Pacesetter filed a “supplemental resistance.” The supplemental resistance was supported by a facsimile copy of an affidavit made by Pacesetter’s in-house counsel. The affidavit attested, in relevant part, that Neiman had not collected sums on either judgment, and that Pacesetter “has no records of the second set of request for admissions.”

In a ruling filed March 18, the district court granted Neiman summary judgment. The court noted Pacesetter’s requests for additional time to respond were untimely and in fact made after the close of pertinent pretrial deadlines. Concluding Pacesetter’s failure to timely respond was not a matter of excusable neglect, see Iowa R. Civ. P. 1.443(1)(b),[1]
the court denied the requests for additional time to resist the summary judgment motion and to answer the second set of requests for admissions. The court accordingly deemed the second set of requests for admissions, like the first set, to be admitted See Iowa R. Civ. P. 1.510(2). The court concluded that, based upon the admissions, there was no genuine issue of material fact for trial, and Neiman was entitled to summary judgment. On March 22 the court entered judgment in favor of Neiman and against Pacesetter in the amount of $11,603.47, plus costs and interest.

Pacesetter appeals. It raises one issue, which it states as follows: “As the plaintiff failed to present evidence sufficient to sustain its burden of proof that there was no genuine issue of material fact, the district court erred in granting plaintiff’s motion [for] summary judgment.”[2] Reviewing the summary judgment record, which consists of copies of the contingency fee agreements, the judgments against Pacesetter’s debtors, and the two sets of requests for admissions, we agree with the district court that there is no genuine issue of material fact for trial.

By failing to respond to the first set of requests, Pacesetter admitted the two fee contracts submitted to the court by Neiman were true and accurate copies, and that as asserted in the petition Neiman had obtained judgments on behalf of Pacesetter and Pacesetter had directed Neiman to file satisfactions of judgment. Pursuant to the second set of requests Pacesetter admitted, in relevant part, that it had been paid in full on each judgment, that it had no evidence of any payment to Neiman on sums due to Neiman arising out the judgments, that it was indebted to Neiman for one-third of the amount received in satisfaction of the judgments, and that it had no defense to Neiman’s claims. These facts fully support the claims in Neiman’s petition, and are uncontradicted in the summary judgment record. Accordingly, the district court did not err in granting Neiman summary judgment.

AFFIRMED.