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Davidson v. Hurst5/25/2005
Plaintiffs appeal the dismissal of their personal injury action. AFFIRMED.
Heard by Mahan, P.J., Zimmer, J., and 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 susp
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