from the Iowa District Court for Pottawattamie County,
Richard H. Davidson, Judge.
seeking to contest his father's will appeals the grant of
summary judgment in favor of his half-sister, the executor.
E. Jorde and Christian T. Williams of Domina Law Group P.C.,
L.L.O., Omaha, Nebraska, for appellant.
Michael T. Gibbons and Aimee C. Bataillon Smith of Woodke
& Gibbons, P.C., L.L.O., Omaha, Nebraska, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
appeal involves an action to contest the will of Ronald
Bacon, filed by his son, Justin Bacon. Executor Sarah Bacon
moved to dismiss her half-brother's action, alleging his
objection was untimely under Iowa Code section 633.309
(2015). The parties agreed Sarah's filing could be
converted into a motion for summary judgment, which the
district court granted. On appeal, Justin contends the
district court abused its discretion by allowing Sarah to
offer an affidavit and exhibits in conjunction with her brief
in support of summary judgment. He also argues an issue of
material fact exists as to whether Sarah complied with the
notice requirements of section 633.304.
the specific facts of this case, we find the district court
did not abuse its discretion in allowing Sarah to submit
additional evidence in support of her motion for summary
judgment. And because we find the address where Sarah sent
the notices was reasonably calculated to provide Justin with
actual notice of the proceedings, we affirm the district
Facts and Prior Proceedings
Bacon died on July 20, 2015. Eight days later, his will was
admitted to probate. The will-executed on June 30,
2015-indicated Ronald was not married but had two children,
Justin and Sarah. The will devised all of Ronald's
property to Sarah, per stirpes. Sarah was appointed executor,
and she arranged to have notices of probate and appointment
of executor published in the local newspaper for two
consecutive weeks from August 1 to August 8. On September 10,
Sarah's attorney sent the notices to Justin at an address
on West Dakota Street in Fremont, Nebraska.
four months later, on January 12, 2016, Justin filed a
petition to set aside the will. Among other things, Justin
alleged "[n]otice was not provided as required by law,
" but he did not elaborate further on the issue. Sarah,
who had obtained new counsel, filed a motion to dismiss on
January 15, citing her prior attorney's affidavit of
mailing and challenging Justin's petition as untimely
under Iowa Code section 633.309 (requiring will contests to
be initiated "within the later to occur of four months
from the date of second publication of notice of admission of
the will to probate or one month following the mailing of the
notice to all heirs of the decedent and devisees under the
will whose identities are reasonably ascertainable, at such
persons' last known addresses"). Justin did not file
a resistance to Sarah's motion.
March 4, 2016, the district court held a hearing on
Sarah's motion to dismiss. With consent from the parties,
the court converted the motion to dismiss into a motion for
summary judgment, noting that, unlike a motion to dismiss,
"a motion for summary judgment would entertain
affidavits that would support either one of [the
parties'] positions." Justin offered his own
affidavit at the hearing, which contended his mailing and
last known address was on North Garfield Street in Fremont
and "[n]o notice of the probate of my father's Will
or any other details were sent to this
address." He did not indicate whether he received
notice of the probate proceedings. In conjunction with the
affidavit, Justin submitted several documents confirming his
attested address, including a state-issued identification
card and correspondence with his attorney. Justin's
attorney submitted an affidavit and attached a Westlaw
"People Map Search" printout for Justin-which the
attorney described as "a commonly used service and
information gathering tool normally relied upon in the
practice of law"-listing the North Garfield address but
not the West Dakota address where Sarah's first counsel
sent the notices.
evidence was offered on Sarah's behalf at the hearing.
When asked whether the parties were ready to argue the
motion, Sarah's new attorney explained he had not been
involved with the original mailing of notices and had not
investigated the notice issue himself. At the suggestion of
Justin's attorney, the court directed the parties to
submit briefs in the matter by March 28. The court left open
the possibility of "additional oral argument."
days before the briefing deadline, Sarah submitted a
"statement in support of motion for summary
judgment" along with four attachments, including her own
affidavit. The affidavit regarding the "last known
address of Justin Bacon" attested that Sarah, as
executor of her father's will, informed her attorney
where to send the notices based on text messages she