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Brubaker v. Estate of DeLong7/8/2005
On review from the Iowa Court of Appeals.
Plaintiff appeals the dismissal of her personal injury action for untimely service. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED.
We must decide whether the plaintiff in a personal injury action timely served the defendant with the original notice. Because we agree with the district court that service was untimely, we vacate the decision of the court of appeals and affirm the judgment of the district court as modified.
I. Background Facts and Proceedings
On April 11, 2001, while in separate motor vehicles, Stacy Brubaker and Arthur DeLong were involved in an auto accident in Waterloo. DeLong died on August 20, 2002. On December 19, 2002, Brubaker filed a petition against DeLong seeking damages for injuries Brubaker allegedly suffered as a result of the motor vehicle collision between her and DeLong.
On March 27, 2003, the district court filed a notice of hearing to review Brubaker's failure to obtain service within ninety days of filing the petition. After conducting a hearing, the court entered an order giving Brubaker additional time to serve the defendant. In its order the court stated, "If a return of service is not on file [when the case is reviewed on May 29], this case will be dismissed without prejudice." Brubaker did not obtain service by May 29. On May 29, the court entered a second order giving Brubaker additional time to serve the defendant. In this second order, the court again stated, "If a return of service is not on file [when the case is reviewed on June 30], this case will be dismissed without prejudice." Once again, Brubaker did not obtain service in the time allotted by the order. On July 1, the court entered a third order granting Brubaker additional time to serve the defendant and once more stated, "If a return of service is not on file [when the case is reviewed on July 31], this case will be dismissed without prejudice." By July 31, Brubaker did not obtain service over the defendant. On July 31, the court entered a fourth order granting Brubaker additional time to obtain service. The fourth order also stated, "If a return of service is not on file [when the case is reviewed on September 3], this case will be dismissed without prejudice." Brubaker still did not obtain service by September 3. Instead of dismissing the case, the district court entered a fifth order granting Brubaker additional time to serve the defendant. In the fifth order the court stated, "If a return of service is not on file [when the case is reviewed on September 18], this case will be dismissed without prejudice."
On September 17, David Roth, purporting to act as attorney for the estate of DeLong, signed an acceptance of service on behalf of the estate. Brubaker filed the acceptance the same day. Based on the filing of the acceptance of service, the district court cancelled the no-service review hearing scheduled for September 18.
On October 24, the estate filed a motion under Iowa Rule of Civil Procedure 1.421. In its motion, the estate alleged: (1) the original notice did not comply with rule 1.302(2) because the clerk of court did not sign or seal the original notice; (2) service did not comply with rule 1.302(5) because it was not served within ninety days after filing the petition; and (3) service was not proper because Roth accepted service on September 17, one day before the estate was opened (September 18) and two days before attorney Roth qualified as administrator of the estate (September 19). The motion was not resisted by Brubaker.
A second acceptance of service of the original notice was obtained and filed from Roth on Dece
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