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Rittgers v. West Bank

Court of Appeal of Iowa

December 18, 2013

J. PARKER RITTGERS, KATELYN GAIL RITTGERS, and KELLY GRACE RITTGERS, Plaintiffs-Appellants,
v.
WEST BANK, Successor Trustee to STANLEY FOREST RITTGERS as Trustee of the MARY RITTGERS TRUST, and ALL OTHER KNOWN AND UNKNOWN BENEFICIARIES, Defendants-Appellees.

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Plaintiffs appeal the dismissal of their petition for failure to serve process.

Matthew Sease of Kemp & Sease, Des Moines, for appellants.

Karl Olson and Michael Mock of Parker, Simons & McNeil, P.L.C., West Des Moines, for appellees.

Considered by Doyle, P.J., and Tabor and Bower, JJ.

TABOR, J.

Mary Parker Rittgers died on September 11, 2011. Her son J. Parker Rittgers[1] filed a petition on September 11, 2012, alleging mental incompetence and undue influence in the establishment of her inter-vivos revocable trust. The district court dismissed the petition on May 8, 2013, finding plaintiffs failed to serve process on the trustee within ninety days as required by Iowa Rule of Civil Procedure 1.302(5). The plaintiffs contend their efforts to personally serve trustee Stanley Forest Rittgers by hiring a process server constituted good cause for the court to approve an extension or alternative service under the rule. After reviewing the record, we find the plaintiffs have not shown good cause for failing to complete personal service within ninety days of filing their petition. Accordingly, we affirm.

The following timeline is helpful to our analysis of the case.

On September 7, 2012, Matthew Sease, the plaintiffs' attorney, sent an email to attorney Jim McCarthy, inquiring about the trust established by Mary Rittgers and asking for a copy of the trust document.

Four days later, on September 11, 2012, the plaintiffs filed their petition and jury demand. The document asserted a copy was provided to Stanley Forest Rittgers.

One day after the suit was filed, on September 12, 2012, attorney McCarthy replied to attorney Sease's email, writing: "Have tried to contact Trustee to discuss your request. Apparently he's traveling; hope to respond to you later this week."

On October 8, 2012, attorney McCarthy followed up with a letter to Sease, explaining McCarthy's contact with a previous attorney for Parker Rittgers and providing a hand-written note from Mary Rittgers to Parker dated August 19, 2004, which explained why he would not be receiving an inheritance. McCarthy also provided Sease with a copy of a publication notice for the trust.

On December 3, 2012, eighty-three days after the suit was filed, Sease emailed McCarthy to tell him, "I filed suit in this matter back in September. Held off serving Stanley in an attempt to informally obtain trust documents and hear from you." Sease confirmed his clients intended to move forward with the litigation, and asked McCarthy if he would be willing to accept service on behalf of Stanley Rittgers. Sease attached a scanned copy of the petition and original notice to the email. Finally, Sease wrote:

If you are willing to accept service, please let me know as soon as possible and I will place the original in the mail. If you are not willing to accept service, also please let me know so I ...

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